Indi’s MLQ v Saguenay review: The many faces of secularism

One of the fascinating aspects of the Mouvement laïque québécois v Saguenay (City) case was the way state secularism was defined… repeatedly. Multiple versions of state secularism were discussed and contrasted over the course of the case.

The duty of the state with respect to religious neutrality – that is, the nature of state secularism – was not a major topic in the Tribunal des droits de la personne (TDP; or “Human Rights Tribunal”) decision. Judge Michèle Pauzé mentioned the concept only in passing, and even then she merely deferred to previous Supreme Court rulings. It became a central issue with the Québec Court of Appeal ruling, where Justice Guy Gagnon used a legal technicality to throw out Pauzé’s decision – completely ignoring that it was supported by the Supreme Court – and substitute it with his own. Gagnon introduced an idiosyncratic definition of neutrality (that wasn’t really neutrality at all) based on a strangely selective reading of a Supreme Court ruling, and a famously terrible European Court of Human Rights ruling. Supreme Court Justice Clément Gascon spent a great deal of time in the reasoning for the final Supreme Court ruling dealing with the confusion Gagnon introduced.

I’m going to cover the Supreme Court version – the actual version of state secularism that Canada uses – in the next instalment. In this instalment, I’m going to talk about the various versions that were proposed and discussed in the case leading up to it.

It all started in the Tribunal. And specifically, it all started with the testimony of Solange Lefebvre.

Solange Lefebvre was one of the two expert witnesses hired by Mayor Jean Tremblay (using City of Sagueany money) to defend the prayer. She held the religion, culture and society chair of the faculty of theology and sciences of religions at the Université de Montréal since 2003. She had a Ph.D. in theology from the Université de Montréal, as well as a D.E.A. (diplôme d’études approfondies, an advanced degree) in social anthropology and ethnology from the École des hautes études en sciences sociales in Paris.

Lefebvre was the most quoted witness in Pauzé’s reasoning for the Tribunal ruling, and she spoke at length on multiple topics. She tried to argue that the religiosity of the prayer was not intrinsic to the prayer, and that the prayer itself was merely metaphorical with any religious interpretation coming only from individuals according to their own beliefs. She was also very insistent that if cultural traditions are not maintained, society would fall apart.

But a good chunk of her testimony was about the different ways that states do secularism. She describes four different approaches to state secularism (TDP pp.134–140):

• The first approach is what she calls integral secularism (TDP p.135), but I feel that label is misapplied. She also referred to it as anti-religious activism. However, I think it is better called “anti-religious extremism”.

  This approach is about a desire to remove all signs of religion and religious belief from the public sphere. It wasn’t clear from what I read of the testimony whether Lefebvre literally meant “the public sphere”, or if she merely meant the state and its incarnations – that is, the “sphere of public authority”, or “sphere of power”. If she did actually mean the public sphere, she would be talking about not only stripping all public workers of their religious symbols, but even people who want to engage the government… in other words, not just banning the clerks at the passport office from wearing turbans, but also refusing to serve customers wearing them.

  I can’t be sure what exactly was meant, because while “public sphere” has a proper definition universally accepted by sociologists, it’s one of those terms that is widely misunderstood by the general public. Lefebvre might have been using the phrase with the intent of being vague, or Pauzé might be misusing it – it’s impossible to say for sure. On the other hand the term “sphere of power” is actually used (TDP p.136), so maybe both Lefebvre and Pauzé did understand the difference, and they were using the terms correctly and deliberately. As I said, impossible to say for sure.

  Assuming Pauzé meant “sphere of power” (just the state and its agencies, rather than the broader “public sphere”), this approach is basically the idea behind the infamous “Charter of Values” of the Parti québécois, which was proposed a year or two after the Tribunal hearing. If Pauzé actually meant “public sphere”, then this approach is even more extreme than the “Charter of Values”, but it is an approach I’ve seen advocated in the comments here. I’m going to assume they meant what they said, and this approach is actually meant to be about banning all signs of religion from the public sphere (not just from the government; anywhere in public).

  Lefebvre insinuated that Mouvement laïque québécois (MLQ) supported this approach, and called it too radical for a Western democracy.

• The second approach wasn’t given a name, but it is what I would call “secularism-lite” (TDP p.136).

  This approach calls for strict neutrality of the state, while leaving individuals alone – the way secularism should be done. However, it also allows letting the state continue using inherited, or “traditional”, religious symbols and practices… which is not the way secularism should be done.

  Lefebvre claimed this approach was the one advocated by the Bouchard–Taylor Commission (aka the Consultation Commission on Accommodation Practices Related to Cultural Differences). (Interestingly, both of Tremblay’s expert witnesses gushed about how much they approved of the Bouchard–Taylor Commission, despite the fact that the Commission recommended that municipalities stop saying prayers. Neither expert witness had a response to that.)

• The third approach also wasn’t given a name, but I’d call it “half-assed” (TDP pp.137–138). Or if I were being generous, maybe “transitional secularism”.

  In this approach, the state can be openly religious, so long as the religious stuff is kept strictly separate from the exercise of its power. In other words, the state can be as blatantly and shamelessly Catholic as it pleases in its traditions, practices, and symbols, but when it comes time to write laws and administrate, its Catholicism should be set aside and it should act in a properly neutral and non-discriminatory way, not favouring Catholicism.

  Lefebvre claims that this is the approach adopted by the majority of states in the Western world. It’s hard to disagree, except to point out that while this may be what states do in practice, it doesn’t really match what their laws and constitutions direct them to aspire to. (Canada would be a good example, as this case reveals.) She also called it the approach used by the Ontario Superior Court of Justice, when it ruled that government prayer was okay in 2004’s Allen v Renfrew (Corp. of the County).

• The fourth approach Lefebvre labelled integral religious (TDP p.140), and Pauzé later refers to it as religious conservativism (TDP p.185), but I’d call it simply “theocracy”.

  This approach is simply “no secularism”. The state is openly religious, and religious influence actually applies to the exercise of its governing and administrative powers. Basically: theocracy.

  Lefebvre agreed that this approach is indefensible.

Lefebvre argued that the Québec population is wavering somewhere between type 2 and type 3 – between “secularism-lite” and “transitional secularism”. I don’t think she was correct, and I think the evidence of that came a few years later, when the “Charter of Values” came up for debate. I think Québec demonstrated that it actually ranges between type 3 all the way up to the more extreme interpretation of type 1 – all the way from “transitional secularism” to “anti-religious extremism”.

I think further evidence is that – as MLQ’s expert witness Daniel Baril pointed out – Lefebvre misrepresented the position of the Bouchard–Taylor Commission. She claimed the Bouchard–Taylor Commission fit into type 2, “secularism-lite”. However, as Baril pointed out (TDP p.185), it would be more correctly fit into a position between type 2 and type 1, because Lefebvre’s type 2 allowed “traditional” religious symbolism and practices while the Commission report did not (except where it was ridiculous to remove them, like cutting crosses off of formerly religious buildings re-purposed for civic use). Baril decided that Lefebvre’s categories were of little use, because she put MLQ and Simoneau in type 1 and the Bouchard–Taylor Commission in type 2, even though MLQ and Simoneau were literally just asking for what the Commission recommended: the cessation of government prayer.

I am inclined to agree with Baril that Lefebvre’s categories are not very useful. However, I would argue that the reason for that is simply that she screwed up. She missed a very important, critical type of secularism between 1 and 2. (In fact, arguably she missed quite a few types between types 1 and 2.) But we’ll get to that, shortly.

So those were the four types of secularism Lefebvre described:

1. Anti-religious extremism: All signs of religion are banned from the public sphere.
2. Secularism-lite: The state must be strictly neutral, though individuals have freedom of religion. However, the state can continue to use “traditional” religious symbols and rituals it has inherited.
3. Transitional secularism: The state must be strictly neutral in the exercise of its power, but it can be openly religious in its symbols and rituals so long as there is a clear line of separation between the religious stuff and the exercise of power.
4. Theocracy: The state can be religious, both in its symbols and rituals, and in its exercise of power.

Now we come to the Québec Court of Appeal. As I’ve described in previous instalments, the Court of Appeal used legal chicanery to completely throw out the Tribunal decision, and then reconstruct it according to its own point of view. They also made a big deal about the question of a state’s duty of neutrality – making it the primary issue (QCCA p.37) – though it wasn’t really something the Tribunal made an issue of. Most of the Court of Appeal’s ‘reconstruction’ is bizarre and suspicious, but the way they ‘reconstructed’ the conclusion about the state’s duty of neutrality is particularly smarmy.

Firstly, Québec Court of Appeal Justice Guy Gagnon didn’t base his arguments on any of the evidence presented at the Tribunal hearing at all. (Recall that he’d declared MLQ’s expert witness Daniel Baril to be an invalid expert witness – wrongly, it later turned out – but he accepted both of Tremblay’s expert witnesses. So Solange Lefebvre’s testimony was still available for him to use; he just ignored it.) He also ignored the Supreme Court reference that Judge Pauzé used. Instead, Gagnon based his rather idiosyncratic definition of state neutrality on a combination of some very selective quoting from previous Supreme Court decisions, and a famously terrible decision by the European Court of Human Rights Grand Chamber.

Gagnon started his argument by insisting that the state’s duty of neutrality is poorly understood (QCCA p.61). I say ‘started’, but that was really the entirety of his argument. You’d think if he thought the concept was so difficult to understand, he might have, yanno, found expert testimony on the topic useful, but no. Gagnon figured he could work this out himself.

Gagnon decides that Lefebvre’s type 1 secularism – anti-religious extremism – is a no-go (QCCA p.65). While that’s fair enough, the problem is he doesn’t make any connections to what was discussed at the Tribunal. Which means that he rules out type 1 secularism even though no party at the Tribunal wanted it; every expert witness – Baril included – agreed that banning the prayer was in line with type 2 secularism (secularism-lite), or at the very least something between types 1 and 2. (Baril even made a point of specifically noting that type 1 secularism was far more extreme than what was being asked for (TDP p.185).)

Instead, Gagnon settles on what seems like a version of type 3 secularism – transitional secularism. It’s impossible to say for sure what Gagnon really wants, because he’s about as clear as lead mud, but I’ll take a stab at it. He deems his version “benevolent neutrality” (QCCA p.76).

Gagnon’s justification for his “benevolent neutrality” rests primarily on the European Court of Human Rights decision in Lautsi v Italy. This was a case about Italian public schools displaying crucifixes in the classroom. After Italy’s highest court ruled that displaying crucifixes was okay because they just reminded everyone that all their laws came from religion (yes, seriously), Solie Lautsi took the case to the ECHR. The ECHR actually ruled in her favour, saying the crucifixes were obviously religious icons (duh, right?), and that it was wrong to put them in places nonbelievers can’t ‘escape’ from (like public classrooms that they have a right to be in). But this judgement caused an uproar, so the ECHR Grand Chamber reversed the decision, arguing that even though the symbols were obviously religious, and even though putting them in classrooms was obviously all about promoting Christianity, that wasn’t enough to constitute discrimination because – get this – it wasn’t actively proselytizing… it was merely passively proselytizing. So, no problems there!

I could go on about the stupidity of Lautsi v Italy, but that would be getting off track. I’ll just say that both the outcome of Lautsi v Italy and the outcome of the Québec Court of Appeal decision in MLQ v Saguenay are the fault of anti-religious activists masquerading as secularists; that is, the people who have turned secularism into an ideology and wish to use it as a club to beat down religious people, rather than recognizing that secularism is simply a way – the only way – to make a truly diverse society work without crippling its diversity. Both the ECHR GC and Gagnon writing for the Québec Court of Appeal made the point of contrasting ‘secularism’ versus ‘neutrality’, based on the mistaken notion that ‘secularism’ means intolerance of any sign of religion – intolerance even the merest whiff of religiosity – rather than what it actually means… which is ‘neutrality’. The reason for that misunderstanding is entirely the fault of the anti-religious activists, who have co-opted the word ‘secularism’, and redefined it to their own ends. It is thanks to those assholes that ‘secularism’ is becoming a dirty word. Notably, even the Supreme Court decision favours ‘neutrality’ over ‘secularism’.

So Gagnon uses Lautsi v Italy to justify denying secularism (QCCA p.73). And arguably, he mis-uses it, because the Lautsi v Italy decision could easily be interpreted as a supranational court admitting it doesn’t have the power to enforce secularism on its member states (that is, once citizens are not being actively coerced, it’s not a matter for a supranational court; member states are free to be passive-aggressively religious).

Gagnon also makes a big fuss about the state’s right to maintain tradition and celebrate culture and history.

Pauzé justified her take on state neutrality by quoting two cases:

• Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine (Village) [2004].

  The Jehovah’s Witnesses wanted to build a church, but they didn’t want to build it in the area zoned for churches. So they bought a parcel of land in the commercial district, and applied for it to be re-zoned for a church… twice. Both times the municipality refused, and gave no reasons. The Witnesses filed a complaint for religious discrimination. The Supreme Court found 5–4 that the municipality had violated the Witnesses’s religious freedom by not giving reasons for the refusal, and ordered them to either approve the application or give good reasons why they couldn’t. (The dissenters basically pointed out that the city had noted – after the fact – that there was still land available in the church-zoned area, so that was all that needed to be said… there was no reason to make it a religious freedom issue.)

  Pauzé doesn’t really use this case much. She only quotes former Justice Louis LeBel, who was writing the minority dissenting opinion, that the state has a duty of religious neutrality.

• R. v Big M Drug Mart Ltd. [1985].

  This is the famous “Lord’s Day Act” case, where a Calgary drug mart was charged with being open on Sunday in defiance of the law. The Supreme Court held 6–0 that the “Lord’s Day Act” was unconstitutional.

  This is the decision Pauzé bases her understanding of state religious neutrality on. Pauzé quotes the majority opinion and follows the logic that laws that promote Christianity cannot align with the state’s duty of religious neutrality. Basically, the state can’t make a law that favours Christians (by making Sunday a mandatory day off), therefore the prayer by-law – and the practice as a whole – is in violation of the Charter.

Gagnon not only throws all that reasoning out, he completely ignores R. v Big M Drug Mart Ltd.. Instead, he quotes:

• The European Court of Human Rights in Lautsi v Italy.

  This not only has no bearing in Canada, it was a supranational court. Talk about your apples to oranges.

• A tiny bit of LeBel’s dissenting opinion in Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine (Village).

  Gagnon quotes literally 30 words out of a 135 word paragraph… not even counting the 70 word quote… to get:

  …The diversity of opinions and convictions requires mutual tolerance and respect for others. Freedom of religion is also subject to limits necessary “to protect public safety, order, health, or morals. …”

  He uses that sub-quote to justify protecting the delicate sensibilities of the overwhelming religious majority. Notably, he never really shows any concern for the nonbeliever minority, and he never shows how Simoneau’s freedom of religion is being limited for the sake of “public safety, order, health, or morals”.

• And finally, and most bizarrely, he cites S.L. v Commission scolaire des Chênes [2012] quite extensively.

  Now this was the Supreme Court case about the mandatory “Ethics and Religious Culture” course taught in Québec. Some religious parents wanted to exempt their kids from it, but every level of court and administration found them to be full of shit, and that learning about the existence of other faiths was not a violation of one’s religious freedom.

  What’s bizarre about Gagnon’s use of it is that:

  • First he quotes a quote of a quote that isn’t actually part of the decision, but merely some background former Justice Marie Deschamps brought up as an aside, just to illustrate how hard it was to make her decision. Notably, she uses that quote to illustrate the problem… then two paragraphs later presents a solution that is inconsistent with Gagnon’s ‘benevolent neutrality’ concept.
  • Then he actually quotes that solution which directly contradicts his concept, while presenting it as evidence to support it.

  The relevant part of the quote is: state neutrality is assured when the state neither favours nor hinders any particular religious belief. Did you catch that? Gagnon figures that so long as the state isn’t favouring a… particular… religious belief, then all’s cool. He ignores the fact that the quote goes on to say: [state neutrality is assured …] when it shows respect for all postures towards religion, including that of having no religious beliefs whatsoever. Gagnon’s reasoning is that it doesn’t matter that the prayer is not showing any respect to nonbelievers… so long as it doesn’t show respect to a particular religious belief, there are no problems.

So Gagnon’s ‘benevolent neutrality’ appears to be similar to Lefebvre’s type 3 ‘transitional secularism’. The difference is that while that concept allows favouring particular religions (so long as that is kept separate from the actual exercise of power), Gagnon’s ‘benevolent neutrality’ doesn’t. Gagnon’s ‘benevolent neutrality’ appears to allow the state to favour groups of religions, or categories or classes of religions… just not individual, specific religions.

In other words, it’s not neutrality at all, ‘benevolent’ or otherwise. It’s magnanimous non-neutrality.

That is how Gagnon justifies the state pushing a watered-down ‘ecumenical’ version of Christianity. So long as the terminology is kept respectably vague, and the God-bothered are not too aggressive about proselytizing, they are allowed to get away with it. Gascon apparently thinks that’s all fair, and it’s how state neutrality should be done in Canada.

I don’t think I could find better evidence of how poorly understood secularism is in Canada – even by people who claim to be secularists. The preponderance of approaches described over the course of MLQ v Saguenay shows that we have a lot of educating to do. We’re damn lucky the Supreme Court gets it – although, depressingly, even they prefer to avoid the ‘s’ word and refer to it as ‘neutrality’.

In the next instalment, I’ll discuss the correct approach to secularism. Which, happily, is the one the Supreme Court has put its stamp of approval on.