For many years, my view of the world has included a belief in secularism. Depending on how confident I feel at any given time, I am an atheist or agnostic. But what does this really mean and what does it say, from my perspective, about the place of religion in the public square and in private life? What can we say about the nature of a secular society, especially one that has recognized freedom of religion? (I stress, at least as far as I see it, no absolutes, or very few, here.)

In contrast to a theocratic state, which is governed by a particular religion, a secular state does not advance a particular religion, or religion generally: thus government and education, for example, do not have a connection with religion (although this is complicated by the constitutional guarantee of denominational schools). The moral attributes of the state are not explicitly attributed to religion, although religious tenets may serve as a subtext to an ostensibly secular moral code, whether admitted or not.

On this last point, secular states may be officially atheist, not accepting freedom of religion, recognizing freedom of religion or, despite stating acceptance, nevertheless oppressive of it or of some forms of it. My personal perspective believe in a liberal-democratic state that does acknowledge and permit freedom of religion (and of conscience, a rather trickier ground I think, despite the broad scope the Supreme Court of Canada has given religious belief in cases such as Big M Drug Mart and Anselem). Such a state also prohibits the corollory of freedom of religion, the right not to be discriminated against on its basis.

However, inevitably things are really not so simple. A state that is appropriately described as secular today may have had significant religious components or influences in the past that linger today. Canada is a good example of a state that at one time, although not identifying an official or state religion, nevertheless behaved as if Christianity was a state religion. A brief description of the discrimination against Indigenous peoples, in part based on religion, on Jews and on others can be found in the Ontario Human Rights Commission’s history of “creed”. Some states, such as France (and Quebec), once governed by religious practice, now seek to eliminate religion from the public square completely or in part .

Our respect for civil liberties — freedom of speech, freedom of religion, freedom of association — derives from the historical denial of those liberties. As far as religion is concerned, world history and current circumstances is replete with forced conversions, death, sometimes horribly so, for those who do not accede to the dominant religion and, in a less dramatic sense, denial of education, employment or housing. We can point to many such occurrences across the world, including in Canada. It is a mark of an advanced society, in my mind, that it can accept people’s religious observances, recognize the strength they gain from their religious belief and understand that their commitment to their religion is a fundamental aspect of their identity. Similarly, those who have no religious views should be allowed that perspective, as well.

I appreciate, and even envy at times, the comfort people can receive from religion, whether because they believe they will see their loved ones again after they have passed away or at least that the afterlife has meaning.

I read not long ago a beautiful and moving description of the “afterlife” by Ted Rohn, publisher Greg Younging’s brother:

When Dr. Younging began his spirit journey on May 3, he was surrounded by family and the love of friends who had inundated the hospital with calls and posted messages online. His father spoke to him while his daughter Nimkish held his hand and sang to him, much like he had sung her to sleep as a child.

“He found peace in the surrender,” brother Ted wrote online. “We washed him in cedar water and prayed for his spirit.”

“On the first night, he travelled to the Sky World. He rested, lit a fire and ate a meal,” Ted said in his eulogy. “On the second night, he travelled to the Star World. That night, we watched from his balcony as the night sky lit up and danced with his energy. The third night, he travelled to the place where the waters are. There, our ancestors met him and greeted him and showed him how to cross the waters. On the final night – last night – the ancestors took him into the dark. They had to leave him, this part of the journey he had to take on his own. Alone, he followed the light through the Dark World, and made his final crossing over into the light and into the love.”

Kateri Akiwenzie-Damm, “Publisher Greg Younging nurtured Indigenous voices in Canada“, The Globe and Mail (online May 28, 2019)

Such belief can only be described and truly felt by those for whom it is an integral part of who they are. The rest of us, or at least I know I am, are outsiders who can only acknowledge how important this belief is. That is what freedom of religion is ultimately about, I believe. Even those of us who do not have the faith religion requires, should in a liberal secular society, be willing to accept the faith of others with the important caveat that the faith is not grounded in hatred or ill-treatment of others.

But that is the easy part. Inevitably, conflicts will arise when religious beliefs run up against other religious beliefs or other situations in which the religious expression negatively affects other people directly or cannot be reconciled with another significant societal interest. Despite a commitment to religious freedom, a secular society requires that some expressions of religious belief may have to give way in the face of the public good. Otherwise, we run the risk of developing a theocracy, albeit one that is manifested in the dominance of several different sets of religious belief. (Although some would argue the public good requires observance of the morality reflected in or following from certain religious beliefs.)

Sometimes the struggle is an internal one: for example, a public figure must somehow reconcile — or ignore — their religious beliefs in order to conform to other loyalties.

In secular countries, adherents of the church who also have public decision-making powers and authority must struggle themselves with conflicts that might arise from their religious beliefs — and expectations of their church — and their government responsibilities. I recall being impressed by Mark MacGuigan’s honest and thoughtful journey into this struggle in his book Abortion, Conscience & Democracy (1994) (still available, it appears, from Dundurn Press). (See my 1995 review in the Canadian Bar Review). I wrote in my review,

MacGuigan’s theoretical position grows from the parallel developments of pluralist democracy and of the liberalization of religion, merging in the secular democratic state, the separation of the political from the religious, and the growth of secular principles to guide the determination of moral decisions. Yet he sees the religious and the secular as ultimately intertwined : “a religiously neutral, pluralist democracy. . .is more than a mere toleration of diversity. It is an acceptance of pluralistic society as God’s plan for the world”. (P.526)

I reread this review for the first time in many years (I probably haven’t looked at it since 1995!) for this post and realize that, while I have always thought about MacGuigan’s position as one to be admired (and probably still do), that it does not suffice in the end to address the fundamental question because of MacGuigan’s starting point:

MacGuigan’s position is grounded in the rights of women who are “morally impelled to have abortions”. This attribution of the demands of conscience provides a symmetry perhaps necessary to a thesis premised on rationality and logic. But in the nearly twenty-five years that I [had then] been involved in this struggle, I have never heard a woman claim that she has been “morally impelled” to have an abortion. Rather, I have heard women talk about the failure of contraception, having to raise existing children singlehandedly, having conceived from rape, and young women who, like their male companions of the instant, were careless and faced severe disruption of their lives. These are not reasons which MacGuigan would recognize as legitimate after viability, but they are the reasons women need access to abortion. (P. 528)

Individuals with other religious beliefs in public positions of authority will have faced the same challenge, maintaining adherence to their religious beliefs and observing public policies and laws that affect others. Others (and I think of Vice-President Pence of the United States who appears to bring his particular Christian beliefs to legislation denying LGBTQ+ peoples their rights, even to perhaps influencing taking away the rights they have already acquired) use their public positions to advance their own religious outlook.

In other cases, and perhaps increasingly so, the conflict will be more direct and open. For example, if a public school teacher’s religious faith restricts his interaction with women and he refuses to meet alone with a female parent of a student, his belief must give way to the more general commitment to gender equality rights. Some may argue that an accommodation could be achieved: if there is a male parent available, he could meet with the teacher; a male employee of the school could meet at the same time. Such adjustments might seem simple and possibly both female parent and teacher would be willing to make these arrangements. But what does it say about our understanding of the equality of women that they must be subject to the tenets of a religion that somehow does not see them as equal (I say this realizing that others would argue that there are different ways to think about equality)? This is a case in my view where the religious belief must give way to another right.

A similar issue arose at York University when a male student refused to work with female students in a course requiring group work. The student had taken internet courses because he said his religious beliefs prevented his interacting with women; however, the group work was required. The professor refused the student’s request and the student did accept that. Despite the student’s response, the York administration took a different tack, ordering the professor to accommodate the male student. The professor refused. (The university claimed that the order to accommodate was based on the nature of the course: it was an online course and the student had selected it because he would not have to attend classes on campus, but without seeing the course syllabus it is difficult to see whether this might have been the case from the outside and it is not the reason apparently given by the student.) These cases affect particular groups, but they also represent the public interest in not having authorities complicit in infringing broader rights.

Let me consider another example: the refusal on religious grounds to vaccinate children. (There are issues relating to adults who do not get vaccinated, such as failure to get a flu vaccination every year, but I’m limiting myself to children here). Here the broader public interest is clearly at stake, since it is necessary for a sufficient percentage of persons to be vaccinated in order to have the proper impact (the so-called “herd immunity”). Children who cannot be vaccinated for some reason are also at greater risk from other children around them who contract measles, for example, because the latter were not vaccinated. This example is also complicated because some parents refuse to vaccinate their children for non-religious reasons, because, for example, they believe debunked notions that vaccinations cause autism.

In Ontario, the law requires children to be vaccinated against a list of diseases before they can attend school; however, the Immunization of School Pupils Act permits exemptions for medical reasons (this requires a medical certificate limited as to disease and effective time period) and for reasons of “conscience or religious belief” (in this case, the parent must, since September 2017, attend an educational session about vaccines and must file a certificate with the medical officer of health, subject to a fine of $1,000 for non-compliance). A report in the National Post earlier this year suggests that these sessions have not changed anyone’s mind and may have entrenched opposition because parents feel insulted. Non-vaccinated students can be removed from school if there is an outbreak of disease.

New Brunswick, which also has a mandatory vaccination law with medical and religious and conscientious exemptions, is eliminating the non-medical exemptions, as are some other jurisdictions, including New York. (I have considered the constitutional aspects of removing non-medical exemptions in a Slaw post.) According to a report in the National Post, Australian parents can lose child benefits if they do not vaccinate their children.

There is disagreement about how to address what is called in an unfortunate euphemism, “vaccine hesitancy”, or more pointedly, labelling those opposed “anti-vaxxers”. Measles can result in death (and has since its resurgence), hearing loss, brain damage and other problems, yet parents still refuse. And measles is easy to catch — one person will probably infect 18 others and even after someone leaves a room, people may still catch it over the next wo hours — and there’s no cure once someone contracts it. It seems that many people opposed to vaccinations develop that view through the internet and social media, where there is false information or emotional stories, compared to the sheet of dry facts and statistics. Better, it is said, to treat those opposed with respect and to discuss their concerns.

We do not permit parents to refuse blood transfusions or other medical procedures that are required to save a child’s life (see B. (R.) v. Children’s Aid Society of Metropolitan Toronto, in which four judges held that the right to religious belief is broader than the right to act on that belief and the other five held that limitation on the right was justified under section 1 of the Charter) and so it is reasonable to ask why we permit religious objections to vaccinations. Not only the parent’s own children are at risk, but other children and adults with certain conditions. Requiring vaccinations is an example of where the public interest should take precedence over personal belief.

Another example can be found in the refusal of some doctors to provide certain services on religious grounds and, in particular, the view that even to refer patients to other medical professionals who would provide the services infringes their religious beliefs. I discussed the Ontario Court of Appeal’s decision in Christian Medical and Dental Society of Canada upholding the College of Physicians and Surgeons of Ontario’s referral policies in a Slaw.ca post. The doctors’ obligation to ensure that their patients will have proper treatment arises from the doctor’s fiduciary relationship to their patient and that may require setting aside religious beliefs.

However, a secular state can tolerate individual religous expression even in those who represent the state: what it cannot tolerate is influencing state policies on the basis of those beliefs.

Quebec’s Bill 21, An Act respecting the laicity of the State (available at
http://www.assnat.qc.ca/en/travaux-parlementaires/projets-loi/projet-loi-21-42-1.html?appelant=MC) has now passed the National Assembly. It prohibits certain civil servants, that is, persons in public positions such as teachers, police officers, government lawyers, judges and others in similar positions of authority providing government services to the public from wearing clothing or other manifest examples of religious belief. While it grandparents current employees, it is only in their current positions, with the paths to a different position or a promotion blocked if they do not secularize their appearance.

The premier considers the legislation a compromise because it only targets people in authority and is a response to the majority of Quebecers’ desire to ban all manifestation of religious symbols in public. Although there is already a challenge to the law, the government employed section 33 of the Canadian Charter of Human Rights (the notwithstanding clause) and amended Quebec’s own Charter of Human Rights and Freedoms so that the legislation cannot be held to contravene it. Nevertheless, those going to court are basing their challenge onthe legislation’s vagueness and on the pre-Charter law holding only the federal level can legislate in this way about religion.

There are several difficulties with the legislation. For example, it is not clear what particular clothing will be considered religious; generally, the forbidden items are “any object, including a garment, a symbol, a jewel, an adornment, an accessory or a headdress” [that] is worn “in connection with religious belief” or “reasonably considered to refer to religious affiliation”. As someone who believes in a secular state, and, I think, understands the view that religious clothing speaks not only for the individual, but for the state itself (a view I reject), such a significant intrusion into religious freedom makes a state autocratic, not liberal, with the possibility of inspectors to ensure compliance with the law (it appears individuals in an organization will be responsible for ensuring compliance and that other inspectors will be checking institutions that may not be applying the law, as some have said they will not.)

How does the principle of freedom of religion until its manifestation harms others play out here? The Premier’s defence, at least in part, is that it is acceptable to limit people’s rights in order to prevent others from acting badly; some may consider that this is asking those who may be subject to harassment or worse to give in to the extremists (according to the Premier, “To avoid extremism, you have to give a little to the majority,” referring to extremist parties in Europe). More philosophically, the premise underlying the legislation is that an individual’s religious expression is transmorgified into the state’s religious expression. It is true that the state is entitled to control the behaviour of its agents so that their ill deeds or even less serious behaviour do not rebound on the state or become associated with the state. The state’s failure to control such conduct might be treated as acceptance of the conduct.

Should the state recognize the degrees of a university that because of its religious commitment singles out a particular group for negative treatment? Here I believe the state would be complicit in the discrimination by the university, although the Supreme Court of Canada found otherwise. (See Trinity Western University v. British Columbia College of Teachers for the relevant case.) However, contrast this decision with Law Society of British Columbia v. Trinity Western University and Trinity Western University v. Law Society of Upper Canada in which the SCC upheld the decision of law societies not to approve the TWU law school. These decisions did not deny people to have particular religious beliefs; rather they meant that people could not act on those religious belief to deny others’ rights (to equality) and still expect to get the benefit the governing authority controlled.

What is the difference between the TWU situations and Quebec’s Bill 21? In my view, the former uses religion to harm a particular group, and thus the state or other governing body becomes complicit in allowing it, while in the latter, the state uses its so-called secular identity to hurt persons who are not harming others solely on the basis of their religious beliefs. Allowing those in authority to wear religious garb, given the different religions involved, would be an example of religious pluralism, which is compatible with a secular state. It would be different if on the one hand, those holding these (different) religious beliefs brought those beliefs to bear in carrying out their functions, or, on the other hand, if the state required the wearing of religious garb or some other indication of religion, whether of one or several religions. Rather, the state is denying religious expression that does not harm others (except that others will see it) and at considerable cost to the religious employees.

A secular state that protects religious belief will not necessarily find it easy to decide when those beliefs cross the line to harm others. This is particularly the case when religious beliefs acted upon may be contrary to other significant societal values. However, for me, the secular state has the same obligation to prevent that harm as it does to prevent harm done to those engaging in religious practice or expressing religious belief through what they wear. A secular state that recognizes freedom of religion can find itelf in treacherous waters, but for me, the way it navigates them — and this is, I admit, easier to say than to do — is to avoid favouring a religion while protecting the expression of all religions unless religious belief is used to harm others.

(One last point: can religion effectively meet its purposes for the individual without structure or a religious institution? That raises the question of the extent of state support for religion through recognition as having a charitable purpose under the Canada Revenue Act, and whether religions/religious institutions are beyond the scope of the state. This, to my mind, does not follow from the place of faith-based institutions in a secular society. However, a complicated topic for another day — maybe!)