On our list of rights, religion comes last

Robert Fulford

When religious beliefs collide with individual rights, we tend to come down on the non-religious side, if necessary using the courts to impose our vision of Canadian life. We grow nervous when public figures are overtly religious. In the last federal election it became acceptable to jeer at the Pentecostal faith of the Canadian Alliance leader, a form of national intolerance unparalleled in the last half-century. Even the prime minister thought it appropriate to scorn Stockwell Day's refusal to campaign on Sunday.

Without thinking much about it, we have apparently developed a new rule of religious freedom: You can believe what you want to believe, so long as you don't act on it or talk about it much. To many of us, religion still looks like the Establishment, and this is a period that favours underdogs and victims rather than leaders.

Canadians of a certain age remember that when Christianity dominated the country, non-Christian children found themselves singing carols about Jesus in public schools, church-going was mandatory in the armed services, and Sabbath rules made Sunday wretched (in Protestant areas) for the rest of us. Probably most citizens were delighted to see the church lose that kind of power.

But in the first 20 years under the Charter of Rights and Freedoms, we have moved so far in the other direction that we casually tolerate unfairness to religion. Rabbi David Novak, a philosophy professor who holds the Shiff chair of Jewish studies at the University of Toronto, called one recent judicial decision "an assault on the integrity of every religious community in Canada." He was talking about the case of Marc Hall, the 17-year-old Oshawa student whose Catholic high school refused to let him bring his boyfriend to the prom. A court overturned the decision of the Durham Catholic School Board, on the grounds that "The cultural and social significance of a high school Prom is well-established. Being excluded from it constitutes a serious and irreparable injury to Mr. Hall." Gay rights trumped religious rights.

Rabbi Novak makes a credible case that religious freedom becomes empty when religious communities lose the right to make moral decisions about their own institutions. He believes that "the culture-forming elites" of Canada (the universities, the media, and the courts) see religious liberty as a lesser priority, and don't protest even when it's attacked by what he sees as the "people who want to drive it into the closet or eliminate it entirely."

In the Marc Hall decision, is Rabbi Novak making too much of a triviality? Not if you imagine the following: A court that can tell a church school whom it should welcome to the prom could also (by similar logic) tell a church whom it can, or whom it must, marry. It's admittedly a long way from the first decision to the second, but it's not an inconceivably long way. And should a court someday make the second of those decisions, then the church's authority will disappear. Rabbi Novak thinks we will all suffer, believers and the rest, because "Freedom of religion is the most important freedom. It is the right that defines the limits of the state."

The tragic controversy surrounding Indian residential schools illustrates, in an entirely different way, current attitudes to religion. This complex, long-running story has played out in an atmosphere coloured by suspicion of church authority. Residential schools were encouraged and sponsored by Ottawa, which from 1883 onward assigned the churches to educate young Indians. By 1930, there were 80 schools across the country, run by Roman Catholics, Anglicans, the United Church, or Presbyterians. By the 1960s they were clearly a failure. Ottawa and the churches began closing them down.

When their crimes and errors became evident, it was the churches that were humiliated and punished. Today, more than 12,000 natives are suing for redress of crimes allegedly committed in the schools. Ex-students began by charging sexual assault and sadistic beating, then brought forth a much more subtle and wide-ranging indictment: Residential schools obliterated native culture. No one would propose doing that today, but it once seemed obvious that the Indians' only hope of survival was assimilation to white culture.

The Indian plaintiffs now demand that the past be judged by the standards of the present. This means that in the year 2002 30-year-old churchgoers are paying (and will probably pay far into the future) for mistakes made by their churches before they were born. For a while it seemed to many Anglicans that litigation would bankrupt their entire national church, resulting in the sale of church buildings and the firing of clergy. Instead, the Anglicans have apparently agreed to pay up to $25-million (nobody knows where they will get it) while Ottawa takes responsibility for the rest. Other denominations have been in similar negotiations.

Whatever the churches have been experiencing in this period, it would be hard to call it freedom. They are trapped. Ottawa used them, then left them hanging in the wind. For the most part, society as a whole has barely noticed this injustice.

The Charter of Rights and Freedoms uses the word "God" in the first sentence, but that's a passage most of us ignore. In 1993 Michael Taylor, a Muslim, sat in a Toronto courtroom, observing a criminal trial. He was wearing a kufi, a large, white knitted skull cap. A court officer told him that the judge, Arthur Whealy, did not permit hats in court. Taylor replied that his head-dress was religious. The court officer said he had to take it off or leave, so he left. The defence lawyer then asked the judge to rule that anyone wearing a religious head-covering could attend court. Judge Whealy replied that he was charged with preserving the dignity of the court and that, while some head coverings are easily recognizable (by "shape, colour, and design") as signifying a "well established and recognizable religious community," Taylor's kufi didn't fall into that category. The defence lawyer brought another motion, now buttressed by an affidavit from Taylor explaining the religious purpose of his head covering. The judge rejected that, too. He noted that there are many self-proclaimed religions or cults. "They come and go. Often, to attract attention and new adherents, intrusive or simply impolite attire is worn." Not in his courtroom.

Seven years later, after unsuccessful appearances before the Ontario and the Canadian human rights commission, the Canadian Judicial Council, and the trial division of the federal court, Taylor arrived at the Federal Court of Appeal. A lawyer representing the Canadian Jewish Congress came as intervenor to help argue that the kufi was entirely appropriate. But the appeal court decided that a judge's need for independence and discretion took precedence over religious observance. So Michael Taylor's kufi was treated just as many other forms of religious expression have been treated in the Charter era. It was judged less important than worldly considerations, and consigned to the corridor, outside the arena of power.