By Howard A. Doughty
“Pas de liberté pour les ennemis de la liberté.”– Louis Antoine Léon de Saint-Just (1767-1794).
If the true test of free speech is the defence of hateful speech (legally abandoned due to the 1985 criminalizing of “hate speech”), what is the standard for freedom of religion?
How can people committed to curious rationality, diversity and inclusion, social justice, compassionate active citizenship, and transparent humility reconcile those views with secularism and the rejection of the supernatural? Is declaring religious neutrality enough?
The preamble to the Canadian Constitution Act, 1982 – Part 1: Canadian Charter of Rights and Freedoms reads: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law…” Then, Section 2(a) assures us that we all have fundamental freedom of religion. Therein lies the rub. Much turns on the preposition “of.” Canadians apparently enjoy freedom of, but not necessarily freedom from religion. Our individual religious freedom seems contingent upon collectively recognizing “the supremacy of God.”
In the over 400 years since Jacques Cartier ventured up the St. Lawrence River to the site of present-day Montréal in 1535, the European presence in Québec has been influenced (some say dominated) by the Roman Catholic Church. Only with the “quiet revolution” of the early 1960s did a conscious, intense program of modernization alter the culture of the Québécois. Once the most religiously observant Canadian province, Québec pivoted into arguably the most secularized subnational society in otherwise English-speaking North America.
Demands for Québec’s cultural integrity, French language rights, and quasi-sovereignty led to statutory secularization including bans on wearing religious symbols while working in positions of public authority.
Bill 21, An Act respecting the laicity of the State, is, according to its authors, “based on four principles: the separation of State and religions, the religious neutrality of the State, the equality of all citizens, and freedom of conscience and freedom of religion.”
For some, including the Canadian Civil Liberties Association, Bill 21 was “a horrendous law that violates human rights and harms people who are already marginalized.” It was bad in principle and worse in application. It adds that the recent Ministerial order banning “prayer rooms” for school students to perform their religious obligations reveals a uniquely Québécois brand of racism.
For others, Bill 21 embodies the laïcité, a concept with roots in the French Revolution. Laïcité (secularism) is an unfamiliar principle to many Canadians, but it is historically crucial to understand French politics. In the ancien régime, society was divided into three “estates”: the clergy, the aristocracy, and… the rest.
Etymologically, the term derives immediately from the Latin lāicus (lay, layman) and ultimately from the ancient Greek laïkós (of the people). It implies democracy in terms of mass opposition to the dominant classes — both clerical and secular. Anglo “rights advocates” are, of course, at liberty to attribute nefarious anti-Islamic and anti-immigrant motives to Bill 21’s supporters. They would do well, however, to ponder the differences between collective rights and individual liberties — specifically the revolutionary French concept of secularism and the evolutionary English idea of tolerance.
Rights do not arise ex nihilo. They are neither “natural” nor “endowed by a Creator.” They are human political, moral, and legal constructions. The archaeology of religious freedom may reveal roots in carefully choreographed passages from the sacred texts of the Abrahamic religions, Roman law, and the Magna Carta (see Micheline R. Ishay. 2023. The Human Rights Reader, 3rd ed. New York: Routledge), but rights-based theory is also the product of specific circumstances having to do with royal succession.
Following the separation of the Anglican Church from the Roman Catholic Church, English Protestants and Catholics struggled for domination. At stake were certain property rights and eligibility for public office. Religious freedom was not introduced to extend liberty of conscience, but to unite Protestants against Catholics!
Led by John Locke’s Letter Concerning Toleration (1689) and increasingly formalized (e.g., the Charter given to Massachusetts in 1691 by William and Mary ordained that “liberty of conscience [be] allowed in the worship of God to all Christians except Papists”). Equally pragmatically, the Charter of Privileges (1701) of Pennsylvania (founded by the Quaker, William Penn) outlawed “molestation and prejudice” against anyone who “acknowledged Almighty God.”
These and now-common freedoms of association, assembly, and the press and, in Canada, a roster of mobility, legal, and equality rights—all intended to secure the safety and personal liberty of the individual—were implemented to encourage post-feudal, free-market economics.
They categorically differ from the catalogue of economic equity rights added to the United Nations’ Universal Declaration of Human Rights including food, shelter, health care, education, and employment. They remain aspirational. The freedom/equity distinction makes an enormous difference.
Among English-speaking liberal democracies, the conversation is normally limited to so-called bourgeois freedoms; i.e., those compatible with late capitalism. Accordingly, rights that promote possessive individualism, economic competition, and technological innovation (“move fast and break things” according to Mark Zuckerberg) are acknowledged and enforced. There is little time for collective cultural identities that may question corporate hegemony. In bilingual, multicultural Canada, matters are more complicated.
Even the Conservative Party’s extreme right wing which floated the idea of a Canadian “values test” for immigrants and passed divisive non-binding resolutions at its recent convention, understands the economic importance of minority accommodation and resists faux populist prejudices that exacerbate workforce and market homogeneity. Bilingualism and biculturalism are hard enough to manage; additional fragmentation along religious, gender, and ethno-racial lines adds unsavoury complexity.
To date, Québec courts have upheld the prayer-room ban and the federal government has shied away from a “charter challenge.” Moreover, if such a challenge is successfully launched under Section 33 of the Charter—the “notwithstanding clause,” then it is likely that the “ban” will be upheld.
That, however, does not resolve the deeper conundrum: Shall there be no freedom for the enemies of freedom? And who, precisely, are they?