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Three understandings of state neutrality

09 April 2018
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Republished with permission from Faith Today, Mar/Apr 2018.


Why not force doctors, schools and charities to operate under current social values?

BY BRUCE J. CLEMENGER
PHOTO OF PARLIAMENT: SIEWYEE AY / SHUTTERSTOCK.COM

A number of religious liberty issues have made headlines in the last year. Likely you’ve heard about the Canada Summer Jobs grant program, the proposed law school at Trinity Western University, the Quebec government’s attempts to refuse public services to people wearing face coverings, and rules in Ontario that require effective referrals be given to patients requesting euthanasia and other procedures even when they go against the conscience of the medical professional.

Often such controversial situations involve individuals or groups that hold a belief not shared by the majority of Canadians, and public policies that claim to treat all Canadians neutrally but end up discriminating against perfectly legal forms of non-conformity. The result can be freedom constrained or benefits withheld. Many times it’s a minority religious group complaining that it is being treated unjustly, but its complaints are rejected with the explanation that regulations of a secular state must be religiously neutral.

So, it is critical all Canadians understand this idea of state neutrality and how it is being applied.

Traditionally there have been two meanings. The first, the historic Canadian approach, is that neutrality means being non-sectarian or fair – the government does not play favourites and treats all the same. In funding or decisions about collaboration, the government under this model must act with indifference to whatever faith animates the group they are working with. The focus is usually on the activities being funded, which should of course be ones that contribute to the public good.

So in Canada there has historically not been a barrier to government funding for programs of faith-based organizations. This understanding of state neutrality means government funding or accreditation/recognition (direct or indirect) is allowed regardless of the religion’s beliefs. (And "religion" here is meant in the broadest sense including atheism, humanism and other world views and sets of values.)

If the group seeking funding or recognition meets the appropriate criteria related to the benefit it is requesting, if it meets the standards and conforms to the activities required for funding/accreditation, then under this model the government must not take sides. It must be non-sectarian.

In B.C. and Alberta for example, faith-based schools do receive government funds as long as they meet the educational requirements. This has been the Canadian approach to church/state collaboration.

The other approach to neutrality is to think of it in terms of abstinence. Under this model a government will not fund any program of any religious organization, nor should it be seen to be supporting a religious organization. This is the American approach flowing out of the interpretation of their First Amendment. We do also find it in Canada, for example in Ontario’s approach to public funding for religious schools. The funding of the Catholic system is required by Section 93 of the Canadian Constitution and protected from the application of our Charter of Rights and Freedoms. But outside this exceptional obligation, the Ontario government will not fund religious schools – it abstains.

Now with situations like the Canada Summer Jobs granting program there seems to be emerging a third approach – let’s call it selective neutrality or sectarian neutrality – which results in selective benefiting of some religious organizations. Like the fairness approach, this model technically can say it allows organizations to believe whatever they want, and the government does not deny a benefit because of religion in itself. However, the benefit is withheld if the organization or individual does not affirm/comply in its practices to the Charter and Charter values (which, by the way, have not been delineated by any court or by Parliament).

State neutrality according to this selective approach means the state can’t benefit or accredit any organization or individual that acts contrary to the Charter and its values. This is a bit like the abstinence approach mentioned earlier. It’s also a bit like the stance of religious neutrality as fairness in the sense it is fair to all religious organizations or individuals that comply with the Charter and Charter values.

IN CANADA THERE HAS HISTORICALLY NOT BEEN A BARRIER TO GOVERNMENT FUNDING FOR PROGRAMS OF FAITHBASED ORGANIZATIONS.

Therefore, depending on the situation, the government agency can either invoke neutrality as fairness or neutrality as abstinence. But in fact this is not a truly neutral approach. It is actually a sectarian approach limited to helping groups that share a commitment to Charter values and certain rights.

Although "Charter values" sounds secular and open rather than religious or sectarian, in fact Charter values are legally undefined. While they are not mentioned in the Charter, they are often invoked to defend an interpretation of the Charter and the freedoms and rights it protects, to determine in what situations the freedoms and rights can be restricted, and to interpret what is in the public interest. Because Charter values are loosely defined and have been a bit of a moving target, in effect this phrase is all too easily used as a stand-in for majoritarian beliefs, morality and values.

KEY TERMS

NON-SECTARIAN – Not allowing judgment of others (or services offered to others) to be influenced by their religious affiliation

FREE AND DEMOCRATIC SOCIETY – The Charter of Rights and Freedoms opens with an important clause – all the rights contained within are subject to "such reasonable limits, prescribed by law, as can be demonstrably justified in a free and democratic society." Free refers to minimal limitations placed on individuals and the maximum ability to pursue what they consider good. The primary limitation is that they should not harm others. Democratic means all can participate in deciding how we will govern ourselves as a society. There is always a tension in democracy because consensus or 100 per cent agreement is rare, and compromises usually need to be made. Being free and democratic is particularly intended to protect minorities from being marginalized or excluded by the majority.

LIBERAL DEMOCRACY – A political tradition that promotes individual freedoms and universal participation in the life of the society (particularly in politics), the rule of law, the balancing of government powers and the protection of human rights and civil liberties, usually codified in a constitution that limits the powers of the government.

In fact, the Charter exists to protect all Canadians from government activity that may violate our freedoms and rights. Legally the Charter applies only to Parliament and legislatures, and any agencies given statutory authority such as law societies and colleges of physicians.

Provincial human rights codes are the comparable rules that apply to non-government entities such as individual persons, businesses, not-for-profits and charities.

There is a tendency in many of the controversies mentioned here to press conformity to the Charter and its values on groups to which it does not apply, when for example an organization receives a government benefit.

Human rights codes allow religious organizations to make distinctions in hiring based on religion, to maintain the religious integrity of the organization, for example. The Charter has no equivalent provision because governments can’t make distinctions on hiring based on religion – they have to be secular.

Let’s apply this to four of the examples mentioned earlier.

The members of a provincial law society seek to withhold accreditation from TWU’s proposed law school. Why? Because they object to the Christian university’s Community Covenant, which uses a traditional (heterosexual) definition of marriage. TWU’s policy is lawful, it abides by the human rights code of B.C., but it does not conform to the moral sensibilities of the law society’s members, and the society, an agency acting under the statutory authority of the government, seeks to withhold accreditation.

Everyone agrees TWU will be able to produce good quality lawyers, so they meet the criteria of neutrality as fairness, but TWU dissents from the morality of the majority of members of the law society, and they vote to withhold accreditation. The freedoms the Charter defends are denied when inconsistent with the values that members of the law society want to promote. The values are imposed on TWU, a private school, if they want to be accredited.

THE MORE ROBUST OUR UNDERSTANDING OF BEING A FREE AND DEMOCRATIC SOCIETY, THE MORE EXPANSIVE WILL BE OUR FREEDOMS.

To put it another way – Accreditation is withheld because TWU dissents from and is non-conforming to the broader civil definition of marriage.

Wearing the face-covering niqab is offensive to many Canadians, but it is lawful. Quebec passed a law that will deny government benefits to women who wear one when receiving the benefit. They call it religious neutrality and invoke the mantra of the secular state, saying they are not targeting a religion, and state neutrality means that government employees should not support the offending practice. Public employees can’t express their religion in their workplace – provincially funded Muslim daycare workers cannot wear a niqab. The state’s burden of Charter compliance and neutrality is imposed on all government employees, lest the government not be seen to be neutral.

Basically – A woman dissents from, or is non-conforming to, the public’s moral objection to a face covering, and she is denied a public benefit.

The government claims the controversial attestation in the Canada Summer Jobs grant application does not prohibit religious groups from applying, but it does ask applicant organizations to affirm the Charter, reproductive rights, other rights and Charter values, as well as not discriminating on the basis of, among other things, religion. It is a values or ideological test that some religious organizations can agree to and others can’t.

The government claims any religious organization can apply – it is being fair – as long as it agrees with the government’s values. If it does not, the government abstains from funding. In effect, it is imposing the special responsibilities and limitations the Charter places on governments – and actually quite a bit more – onto organizations to whom the Charter does not apply. It has decided to deny a benefit to organizations that can’t attest to certain rights and values. In the end the government claims it is treating all religions fairly while abstaining from benefitting those who do not attest to certain values.

To sum up – The organization dissents morally from the government’s view of reproductive rights, or can’t attest to unspecified rights and values, and the grant is denied.

Permit me one last example. The College of Physicians and Surgeons of Ontario has a policy requiring doctors to provide effective referrals for procedures which some doctors, for reasons of religion or conscience, can’t be complicit in. In effect, this policy places the burden on each individual doctor that really belongs to the government – to provide equal access to all legal medical services. Individual medical professionals must act as if they are governed by the Charter in their medical practice. They must abstain from living according to their deeply held beliefs.

In short – The doctors dissent from widespread moral acceptance of euthanasia and abortion, and they are compelled to participate.

In each case the dissenter or non-conformist is denied a government benefit, and this is done in the name of Charter rights and values and an appeal to state neutrality.

Part of the promise of a free and democratic society is that dissenters and non-conformists are not denied benefits or restricted from participation in the public sphere, including public service.

How to treat religious minorities is an old debate, to which the political tradition in Western Europe and North America of liberalism was intended to be a solution. Liberalism said: No religious tests. Governments are non-sectarian. All can fully participate and benefit from government programs and fully participate in the society. How ironic that a tradition which historically rejected religious tests is now dabbling in values tests, which have exactly the same effect!

To be clear, our freedoms and rights are not absolute. Even those delineated in the Charter to protect us from government action can be restricted or violated if doing so is justifiable in a free and democratic society (Section 1).

So, the more robust our understanding of being a free and democratic society, the more expansive will be our freedoms.

The answer to this set of current controversies is for Canadians to re-embrace the fairness model of neutrality. It is a distinctive feature of Canada. It engenders tolerance and respect in a society characterized by deep diversity.

And it would be wise to shift the rhetoric from the language of neutrality to that of fairness. The Supreme Court itself has admitted that ultimately neutrality is impossible, but that nevertheless the state should be as neutral as possible. With different meanings at play, the word is becoming less helpful.

The Charter is intended to facilitate and protect our ability to pursue our respective conceptions of the good life with minimal interference from the government. As is often said, it is to be a shield (to protect minorities) and not a sword (to force them to adopt majority values).

The qualification for government benefits should be criteria related to the benefit, not sectarian values or beliefs. The government should be non-sectarian – whether the sect is based in religion or any parallel set of beliefs.

If the current trend away from a fairness model of neutrality continues, we can only anticipate more attestations being required for organizations to receive different government benefits, and more attempts to require conformity to an undefined and changeable set of Charter values. (Most recently, the phrase was used in the January court decision supporting compelled medical referrals in Ontario.)

In the TWU case, which is awaiting a ruling from the Supreme Court, the Canadian Bar Association argued the logic of denying accreditation to TWU’s law school would also apply to charitable status. The Bar Association basically said: Not only should TWU be denied accreditation based on its religious beliefs, but why not also deny charitable status to all religious groups?

These issues are not just about accreditation of a law school or a job grant. They are about what it means to live in a liberal democracy and how governments treat us – particularly those with minority views, the dissenters and non-conformists.

Bruce J. Clemenger is President of The Evangelical Fellowship of Canada. Read more articles like these with a subscription to the EFC magazine Faith Today.


Author: Bruce J. Clemenger