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The recent decision of the Supreme Court of Canada on prayer before town council meetings in Saguenay, Quebec, has generated a lot of commentary. Some city councils have cancelled their prayers while others have suspended their practice of opening their meetings with prayer until they have had a chance to review the ruling.

The Court concluded that the prayers offered at the start of Saguenay council meetings conflicted with the council’s responsibility to be neutral about religions and discriminated on the basis of religion. However, the Court stopped short of ruling that all such prayers be banned. They said it was the context and circumstances of the prayers that made them incompatible with state neutrality.

Evangelicals disagree about what city councils should do. Some prefer a prayer, some would find a moment of silence acceptable, and others don’t think any prayers should be offered.

The EFC intervened in this case to argue municipal councils and other government bodies should be the ones to decide in each context what, if any, form of religious observance is consistent with their duty to be fair and their desire to accommodate the expression of the religious diversity of their communities.

Our concern was that if the courts imposed one way of dealing with religious pluralism, there may well be implications for other contexts. Think for example of the provision of chaplaincy in hospitals, prisons or the military, and of government officials who, in the performance of their functions, wear religious symbols or headgear.

The case originated in a complaint from Alain Simoneau, an atheist, to the human rights commission that his religious freedom was being violated. That tribunal concluded that the religious observance discriminated against Simoneau on the basis of religion.

In its review of the case, the Supreme Court pointed out that in Saguenay state neutrality was compromised in specific ways as one religion (Roman Catholicism) was clearly favoured.

At the beginning and end of their prayers, the mayor and city councillors crossed themselves and said “In the name of the Father and the Son and the Holy Spirit.” The mayor also talked publically about the prayer as a means to promote his Christian faith – the Court interpreted that to mean the prayer, and the by-law authorizing the prayer, had a religious purpose.

The Court wrote, “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 [Simoneau’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.”

At the heart of the decision is the Court’s understanding of what it means for government or quasi-government bodies to be neutral. In a previous decision the Court affirmed that absolute state neutrality is unattainable. They wrote that “state neutrality is assured when the state neither favours nor hinders any particular religious belief, that is, shows respect for all postures towards religion, including that of having no religious beliefs whatsoever, while taking into account the competing constitutional rights of the individuals affected.”

In Saguenay, the Court says a non-absolutist approach is “nevertheless a true neutrality” which “presupposes that the state abstains from taking a position on questions of religion.” The Court was careful to point out thattrue neutrality does not mean favouring atheism or agnosticism. It would be just as unacceptable, the Court said by way of illustration, for a city council to declare their deliberations are based in a denial of God.

Rather, the Court decision seeks to distinguish between unbelief and true neutrality: “True neutrality presupposes abstention, but it does not amount to a stand favouring one view over another. No such inference can be drawn from the state’s silence.”

This is a questionable conclusion. When some faiths or belief systems entail distinct expression and others do not, allowing no expression is arguably not neutral, and the insistence on abstention places more of a burden on some than others.

Is abstention intended to be the rule in all contexts where government or government officials are involved? This is where the decision is ambiguous.

The Court is saying that the state should not profess a distinct religious belief or create a preferential space for one religious view, because to do so has “the effect of interfering with the individual’s freedom of conscience and religion, that is, impeding the individual’s ability to act in accordance with his or her beliefs.” In the practices of the Saguenay city council, the Court said the impediment was more than trivial or insubstantial.

However, the Court also cited a case from Renfrew, Ontario, which has an opening prayer and where an Ontario court had ruled that any infringement on religious freedom that resulted from the practice was trivial and thus allowed the prayer. The Court did not challenge this lower court decision. Likewise the Court did not apply their decision to the recitation of a prayer in the House of Commons.

In the end the Court did not ban religious observance, including prayer, outright. It has left that determination to government bodies. The Court has found the regular practices in Saguenay to have crossed the line, but it has not provided a clear test to determine where the line is. Elected officials need to sort through their responsibility to be neutral while grappling with what it means to accommodate religious expression in various contexts where governments are involved.

Dealing with pluralities, particularly religious diversity, is often complex. It is in exploring the complexity that we learn about ourselves and others. Religious belief and thought have a lot to say about the common good – to make public spaces unwelcoming to them is to deprive legislators of valuable wisdom.

The Court affirmed this contribution in its decision: “True neutrality is not concerned with strict separation of church and state on questions related to religious thought. The purpose of neutrality is instead to ensure that the state is, and appears to be, open to all points of view regardless of their spiritual basis.”

Perhaps the reason the Court did not take a definitive stand is that, as the Court noted, the Charter of Rights and Freedoms does not require the state to be religiously neutral: “Neither the Quebec Charter nor the Canadian Charter expressly imposes a duty of religious neutrality on the state. This duty results from an evolving interpretation of freedom of conscience and religion.”

The Court is contending that the best way to protect conscience and religion is for the state to be neutral with respect to the differing religious views and beliefs of citizens. This, they said, extends to atheists and agnostics.

The Court believes state neutrality is necessary if governments are to act in a manner that promotes freedom of conscience and religion. They said the ideal of a free and democratic society “requires the state to encourage everyone to participate freely in public life regardless of their beliefs.” Hence the state should not “create a preferential public space that favours certain religious groups and is hostile to others. It follows that the state may not, by expressing its own religious preference, promote participation of believers to the exclusion of non-believers or vice-versa.”

This means a government or government body, or a government official in the performance of their functions, “may not profess, adopt or favour one belief to the exclusion of all others.” They should not undertake activities that result in an “exclusion, distinction or preference” based on one religion. By expressing no preference, the state ensures that a neutral public space is preserved, free of discrimination and “in which true freedom to believe or not to believe is enjoyed by everyone equally, given that everyone is equally valued.”

They said goal of the neutral public space is not the “homogenization of private prayer in that space” but is “intended to protect every person’s freedom and dignity.” Hence the state should not use its power to promote or impose a religious belief, or sponsor an activity that favours one religious tradition or hinders other religious traditions.

This goal is consistent with the Court’s recent decision in the Loyola case in which the Court rejected the Quebec’s government imposing a secular curriculum on a Catholic high school and Quebec’s insistence that the Catholic high school teach ethics and the Catholic faith from a secular perspective.

This goal is also consistent with the ruling of the Supreme Court of Nova Scotia which ruled that the Nova Scotia Barristers’ Society should not use its power to enforce moral conformity on Trinity Western University.

It is not clear, however, how this decision will be interpreted. What of prayers being offered at Remembrance Day ceremonies and state funerals? Often meetings between governments and First Nations groups begin with religious observance. What of attempts to accommodate religious diversity by multiple prayers from major faith groups or opening prayers from various religious traditions being offered on a rotational basis?

The decision is best seen as another step in the ongoing dialogue about the role of the state in a religiously plural society, and the place of religious observance in the myriad of institutions and programs in which governments are involved.

The strong affirmation of the important place of religion in the life of society and the importance of the state being non-sectarian is welcome.

The question is whether abstention is the best way of accommodating religious pluralism while respecting freedom of religion and conscience. The Court commends abstinence, but in this case it stopped short of imposing it.

(Originally published 5 May 2015 at

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