A Prayer for Neutrality

This morning, the Supreme Court delivered its judgment in the municipal prayer case, Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, holding that a prayer recited by the Mayor at the beginning of the city council’s meetings, as well the municipal regulation which regulated its recitation, infringed the City’s duty of neutrality and the rights of an atheist citizen, Alain Simoneau. The Court thus delivers a well-deserved rebuke to the Québec Court of Appeal, which had sided with the City in a judgment I suggested bordered on surrealism. The Court’s judgment is almost unanimous, with only Justice Abella not signing onto Justice Gascon’s reasons (the first he has produced alone, and his first for a majority, after his joint dissent in the gun registry case), and only because of a disagreement about standards of review.

Although the City referred to the prayer as “traditional” and sought (successfully at the Court of Appeal) to defend it as a sort of cultural artifact, the prayer was only as old as the City itself ― that is to say that it dated all the way back to… 2002. It was also unmistakably theistic, referring and appealing to “Almighty God.” Besides, as Justice Gascon points out, the mayor and “[o]ther councillors and municipal officials would cross themselves at the beginning and end of the prayer as well.” As for the by-law, it was of an even more recent vintage, having been enacted in 2008, after Mr. Simoneau’s complaint that gave rise to this case had been filed with Québec’s Human Rights Commission.

The first issue Justice Gascon addresses concerns the applicable standards of review. I will not say much about it here, in the interest of (relative) concision. Justice Gascon concludes that, while the Human Rights Tribunal’s holding on the meaning and scope of the state’s religious neutrality must be assessed on a standard of correctness, its other findings, in particular those that concerned the infringement of Mr. Simoneau’s rights and the religious nature of the prayer, had to reviewed on the reasonableness standard. Another preliminary issue was whether the Tribunal, and hence the courts reviewing its decision, could rule on the propriety of the religious symbols present in the halls where the Saguenay council met. Justice Gascon finds that they could not.

The main issues for the Supreme Court were the state’s duty of religious neutrality and the infringement of Mr. Simoneau’s rights (in particular, given the case’s origins in a complaint to a human rights tribunal, his right not to be discriminated against on the basis of religion). The two are closely linked since, as Justice Gascon puts it, “[s]ponsorship of one religious tradition by the state in breach of its duty of neutrality amounts to discrimination against all other such traditions,” [64] as well as to a violation of the freedom of religion itself.

Neutrality, Justice Gascon points out, is not expressly guaranteed by either the Canadian Charter or the Québec one. It is, however, the product of “an evolving interpretation of freedom of conscience and religion,” [71] and “requires that the state neither favour nor hinder any particular belief, and the same holds true for non‑belief.” [72] The state’s siding with one group of believers or non-believers necessarily conveys the message that others are disfavoured or unequal. As a result, the state

may not use its powers in such a way as to promote the participation of certain believers or non‑believers in public life to the detriment of others. It is prohibited from adhering to one religion to the exclusion of all others. [76]

This prohibition extends to the state engaging in “religious expression under the guise of cultural or historical reality or heritage.” [78] While Justice Gascon points out that “the Canadian cultural landscape includes many traditional and heritage practices that are religious in nature,” [87] and not all of them are contrary to the duty of neutrality, if the circumstances

reveal an intention to profess, adopt or favour one belief to the exclusion of all others, and if the practice at issue interferes with the freedom of conscience and religion of one or more individuals, it must be concluded that the state has breached its duty of religious neutrality. This is true regardless of whether the practice has a traditional character. [88]

Justice Gascon is careful to specify that “a neutral public space does not mean the homogenization of private players in that space. Neutrality is required of institutions and the state, not individuals.” [74] Indeed, the state must “encourage everyone to participate freely in public life regardless of their beliefs.” [75] However, the duty of neutrality is infringed in cases “[w]here state officials, in the performance of their functions, profess, adopt or favour one belief to the exclusion of all others.” [84]

Applying these principles, Justice Gascon finds that the Tribunal’s conclusion Saguenay prayer amounted to an endorsement of a specific religious position and thus a breach of the City’s duty of neutrality was reasonable. The prayer was unmistakably religious, and was recited by the mayor, who emphasized its religious character. In Justice Gascon’s view,

the recitation of the prayer at the council’s meetings was above all else a use by the council of public powers to manifest and profess one religion to the exclusion of all others. It was much more than the simple expression of a cultural tradition. … [W]hat is at issue here is the state’s adherence, through its officials acting in the performance of their functions, to a religious belief.  [118-19]

As for the fact that, under the by-law, the prayer was held before the official start of the council meetings, so as to allow citizens who did not wish to be present to leave the room and come back, it only “highlights the exclusive effect of the practice.” [101] In short, the City had “turned the [council] meetings into a preferential space for people with theistic beliefs,” [120] which was a more than trivial form of interference with the religious freedom of others, including of course Mr. Simoneau, the complainant, as well as a form of discrimination against them.

Finally, Justice Gascon dismisses a number of other arguments raised by the City and the interveners who supported it. In particular, he states that preventing the state from endorsing a religious position does not amount to forcing it to become agnostic or atheist. Prohibiting the municipal prayer is simply not the equivalent of forcing the City to deny God. The fact that a prayer is non-denominational does not stop its being religious, and thus non-neutral. As for “[t]he reference to the supremacy of God in the preamble to the Canadian Charter,” it “cannot lead to an interpretation of freedom of conscience and religion that authorizes the state to consciously profess a theistic faith.” [147]

In the result, the Supreme Court upholds the Human Rights Tribunal’s orders banning the recitation of the prayer and awarding damages to Mr. Simoneau. It also declares the by-law inoperative and invalid, albeit only vis-à-vis Mr. Simoneau, since an administrative tribunal cannot pronounce a general declaration of invalidity.

* * *

Those who recall my criticism of the Court of Appeal’s decision in this case will not be surprised to learn that I am happy with this outcome. More specifically, I am delighted with the Supreme Court’s strong endorsement of the principle of state neutrality, and with its attention to the concerns, which I raised here, about prayer by officials often being

the product of a familiar public choice problem: officeholders using the powers of their office to advance their personal interests and pet causes, not for the benefit of the public, but rather at its expense.

Justice Gascon’s reasons suggest that this is exactly what he saw the Saguenay mayor, Jean Tremblay, as doing. I am equally happy about the Court’s seeing through the mask of “tradition,” “culture,” and “heritage” which it has been fashionable in Québec to use to hide the state’s support for Catholicism. Indeed, it would be nice if Justice Gascon’s clear-eyed discussion of neutrality prompted Québec’s National Assembly to remove the giant crucifix hanging behind its Speaker’s seat ― though I am not so optimistic as to expect such a thing to happen.

Last but not least, I am also happy with the care Justice Gascon has taken to specify that the duty of neutrality applies not to all persons who find themselves in the public sphere, but to the state and to officials speaking for it. To repeat a passage I have already quoted, neutrality reproves ― “the state’s adherence, through its officials acting in the performance of their functions, to a religious belief,” or the officials’ “use [of] public powers to profess their beliefs.” [119] The fact that an official manifests his or her beliefs “on a personal basis” [119] does not matter. To me, this quite clearly suggests that neutrality does not justify efforts to prevent civil servants from wearing religious clothing or symbols. On the contrary, Justice Gascon’s insistence on the state’s duty to welcome the adherents of a variety of beliefs in public life deserves to be emphasized.

That said, while the general thrust of the decision seems to me quite clear, it may not answer all the questions that the concept of neutrality gives rise to. In particular, it does not articulate very clearly the distinction between those religious manifestations which, because of their predominantly cultural character, do not infringe the principle of neutrality, and those that do, beyond saying that intent matters a lot. This may well be as it should be ― it’s not obvious that there can be a bright dividing line between these categories ― but the debates on this topic will continue.

In any case, even if it does not settle every conceivable question, and despite its perhaps lacking in ringing passages that will capture imaginations, one can hardly have expected a better decision than that which Justice Gascon produced. It is impressive that the Supreme Court’s second-newest member has already made such a mark on its jurisprudence. Today is a great day for religious liberty and equality in Canada and in Québec. Amen.