Human Rights and Freedom of Religion in Indonesia

On my bus ride Twitter perusal this morning I cam across this tweet from Canada’s Ambassador for Religious Freedom.

ambB

I would love to visit Jakarta, Indonesia and especially its expansive religious buildings. But there was more news about Indonesia this morning:

Bali Nine executions: Tony Abbott to recall Australia’s ambassador to Indonesia

Yes, to the anger and outrage of much of the world yesterday, Indonesia killed 8 people because they were involved in drug smuggling. The death penalty is a violation of international human rights norms to begin with, but to do it for drug crimes is particularly abhorrent. A number of the prisoners executed were Australian which is why Australian Prime Minister Tony Abbott is recalling his ambassador.

Canada has two ambassadors in Indonesia at the moment, one is our diplomat, the other is our Ambassador for Religious Freedom. No indication they will be withdrawn in protest. I had no idea what he is doing in Indonesia, or what he expects to accomplish, until I found this on the interwebs:

In August of last year, Minister Baird announced the first three religious freedom projects. In Nigeria we are funding a two-year and roughly $553,000 project to promote interfaith dialogue and conflict mediation between different communities, specifically Christian and Muslim communities. With the Organization for Security and Co-operation in Europe, the OSCE, we are launching a three-year project worth just over $670,000 with the OSCE’s Office for Democratic Institutions and Human Rights, to promote international standards on freedom of religion, focusing on recognition of religious or belief communities in eastern Europe, central Asia, and the south Caucasus. In Indonesia we are launching a $260,000 project with the Setara Institute for Democracy and Peace to produce annual reports on freedom of religion and belief, increase understanding by religious communities of their constitutional rights, provide advocacy and networking tools to religious communities, and provide training for teachers on religious tolerance and pluralism.

So he is likely there in connection to the quarter million dollars Canadians are giving the Setara Institute to promote religious freedom. Not likely to demand Indonesia recognize the right to believe and not and ask them to get rid of their law that literally criminalizes atheist expression and resulted in the arrest and jailing of  Alexander Aan in 2012 for writing “God doesn’t exist” in social media.

This highlights the strange and, frankly, offensive fact that Canada has established an office in Foreign Affairs to support only one human right. There is no office for Human Rights, no ambassador. No millions of dollars funding promoting gender equality in Saudi Arabia, promoting gay rights in Russia. Meanwhile Baltimore burns because of racism.

And, on my dime, Ambassador Bennet gets to tour the world’s third largest mosque. I would love to see the Istiqlal Mosque one day, but I am now afraid to go to Indonesia, because it is illegal to promote atheism there. And Indonesia executes people, today drug trafficking, maybe tomorrow for blasphemy. I have little hope that my Ambassador is promoting my rights in that country, or anywhere else.

Impress us Ambassador Bennet. Be courageous. Make a statement in support of Alan Aan, or are you also afraid you will be imprisoned? (Hint: you have diplomatic immunity.)

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Supreme Court Upholds City Council Prayer Ban

The Supreme Court of Canada has ruled that a bi-law setting out and regulating prayer at the outset of city council meetings in Saguenay Quebec violates guarantees of freedom of religion. Like in Big M Drug Mart, the Court saw through the weak protests that the purpose of the by-law was to “ensure decorum and highlight the importance of the work of the councillors”. The purpose of the by-law was to regulate a prayer. The prayer was monotheistic, and, arguably, Catholic. It excluded persons of inconsistent or no religious beliefs and literally had them wait outside.

Before I get into the legal details, I want to talk about what this case means and doesn’t mean. It doesn’t mean people can no longer pray. People, even city Councillors, can still pray. They can pray for hours and days at a time. They can pray at work, at school, they can have whatever content they like in their prayers.

What this case prevents, is government bodies taking a side on religious issues. City Councillors and other government officials cannot pray in their official capacity. This case affirms that government in Canada is to be neutral on issues of religion. Not anti-religious, but neutral. It is not to get involved one way or another on religious issues. I think this is another way of saying that government in Canada is to be secular.

The Background

There were a number of factors that made this case ideal as a test case for secular activists. Firstly, because the city of Saguenay had amalgamated three cities in 2002, and the prayer was introduced to the new Council then, there was little hope of an argument that the prayer was a historic or traditional practice rather than a religious one.

There was no prayer by-law until 2008, following a complaint by atheist Alain Simoneau. At that time the Council. Before the complaint the prayer read:

O God, eternal and almighty, from Whom all power and wisdom flow, we are assembled here in Your presence to ensure the good of our city and its prosperity. We beseech You to grant us the enlightenment and energy necessary for our deliberations to promote the honour and glory of Your holy name and the spiritual and material [well-being] of our city.

Amen

Following his complaint, a by-law was introduced and the prayer was changed to:

Almighty God,

We thank You for the great blessings that You have given to Saguenay and its citizens, including freedom, opportunities for development and peace. Guide us in our deliberations as City Council members and help us to be aware of our duties and responsibilities. Grant us the wisdom, knowledge and understanding to allow us to preserve the benefits enjoyed by our City for all to enjoy and so that we may make wise decisions.

Amen

The by-law allows for time for people who do not want to participate in the prayer to leave.

The Case also featured a mayor who was not shy in characterizing this case a religious crusade.

The Case

The case was brought by Alain Simoneau and the “Movement laique quebecois” to the Quebec human rights commission who accepted that it merited a hearing before the human rights tribunal. There was a challenge to the by-law and the presence of some religious symbols. (There were jurisdictional issues with whether the presence of religious symbols could be litigated, ultimately, no.)

The Tribunal upheld the complaint and ordered compensatory and punitive damages to the complainants in the amount of $30,000. It heard expert testimony from a number of witnesses on issues of secularism and governance.

Cases of the Tribunal may be judicially reviewed by directly to the Quebec Court of Appeal, which quashed the Tribunal’s decision. Courts have limited rights interfere with the decisions of administrative tribunals such as human rights tribunals. Even if they disagree with the decision, they may defer to the decision as long as it is reasonable, but on some issues the reviewing court will require the tribunal to be correct. The standard of review will accordingly be very important. The Court of Appeal held the Tribunal in this case to a standard of correctness.

The Court of Appeal found that the Tribunal had improperly accepted the evidence of an expert who was a founding member of the Mouvement laïque québécois. It found this person to be biased and preferred the City’s experts.

The Supreme Court of Canada found the Court of Appeal to be wrong on just about everything. It held the proper standard of review was one of reasonableness, though I think it is clear from the reasons of Justice Gascon, that the majority thinks the Tribunal got it mostly correct. The decision was unanimous, with Justice Abella giving separate reasons on the standard of review.

What the Supreme Court Held – Canada’s Government is to be Neutral on Religious Issues

For me the most important issue was: what does it meant for a Government to be “neutral” on religion. This is where the expert testimony came in. Evidence was given with respect to various forms of secularism in government.

The City argued that secular government is not neutral since it bans and excludes religious speech, thus favouring the atheist perspective.

Thankfully, the Supreme Court disagreed:

Contrary to the respondents’ argument, abstaining does not amount to taking a stand in favour of atheism or agnosticism. The difference, which, although subtle,   is   important,   can   be   illustrated   easily.   A   practice   according   to   which a municipality’s officials, rather than reciting a prayer, solemnly declared that the council’s deliberations were based on a denial of God would be just as unacceptable. The state’s duty of neutrality would preclude such a position, the effect of which would be to exclude all those who believe in the existence of a deity.

In short, there is a distinction between unbelief and true neutrality. True neutrality presupposes abstention, but it does not amount to a stand favouring one view over another. No such inference can be drawn from the state’s silence. In this regard, I will say that the benevolent neutrality to which the Court of Appeal referred is not really compatible with the concept of true neutrality. As understood by that court, neutrality would in the instant case require tolerance for the state’s profession of a clearly identified religious belief on the basis of tolerance for its history and culture. I do not believe that is the sense of true state neutrality with respect to freedom of conscience and religion.

This is quite important as, recently, there seems to be a push to eliminate any limits on religious practice by government officials acting in an official capacity. (This view was recently advanced by Iain Benson in a debate with Leslie Rosenblood who provided an excellent rejoinder, in line with Justice Gagnon’s reasons.)

Separation of Church and State

I was a little confused by Justice Gagnon’s statements that,

True neutrality is concerned not with a strict separation of church and state on questions related to religious thought.

And,

The purpose of neutrality is instead to ensure that the state is, and appears to be, open to all points of view regardless of their spiritual basis. Far from requiring separation, true neutrality requires that the state neither favour nor hinder any religion, and that it abstain from taking any position on this subject.

I suppose he wants to say that Canada’s government is truly neutral, though it may not have strict separation of church and state. I just do not see how you can have one Christian denomination having publicly funded schools and say this is not favouring one religion.

Gagnon tries to distinguish the Renfrew decision which upheld a prayer as non-denominational. He doesn’t really succeed, he says the prayer in Renfrew was found to be non-religious, but it was almost exactly the same, as the Saguenay prayer, which was modeled after it,

Almighty God, we give thanks for the great blessings which have been bestowed on Canada and its citizens, including the gifts of freedom, opportunity, and peace that we enjoy. Guide us in our deliberations as [County Councillors], and strengthen us in our awareness of our duties and responsibilities. Grant us wisdom, knowledge, and understanding to preserve the blessings of this country for the benefit of all and to make good laws and wise decisions. Amen.

Basically, the Ontario Court of Justice found this prayer to be non-religious, the Quebec Tribunal found the opposite, and the Supreme Court is saying the Tribunal was reasonable. We do not know whether the Supreme Court thinks it really is religious, but from the full context of the decision, it would seem that Gascon thinks the Tribunal got it right. (The fact that punitive damages were upheld screams this.)

I think the larger context played a significant role here. The mayor’s description of this case as essentially his jihad, likely influenced the Court’s view that this kind of thing should be stopped:

 I’m in this battle because I worship Christ.
When I get to the hereafter, I’m going to be able to be a little proud. I’ll be able to say to Him: “I fought for You; I even went to trial for You”. There’s no better argument. It’s extraordinary.
I’m in this fight because I worship Christ. I want to go to heaven and it is the most noble fight of my entire life.

If you are going to write that this prayer is to “to ensure decorum and highlight the importance of the work of the councillors”, don’t go around calling it a fight for Christ.

A great and overdue ruling!

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Is There a God? Why It Matters to Atheists

I am going to devote a number of posts on the question of the existence of gods and I am currently working on a podcast. I’d like to talk about why I am doing this and there are really two reasons.

I Like the Discussion

I find myself drawn to any discussion on the existence of god. I enjoy seeing good atheist arguments and watching theists’ arguments being defeated. I do not know why. I seem to just like delving into the philosophical, moral, and scientific issues at play.

While I do think answering the question of whether any gods exist is an important one, projects aimed at eliminating poverty, preventing war, healing the sick and, caring for the environment are more pressing. I’m interested in doing this series mainly because I enjoy it.

These Are Important Issues

That said, I certainly do think there are a number of benefits and harms that flow from getting this question wrong. If a god does exist and denying or ignoring him means people will be hurt, including missing out on eternal life and facing to eternal anguish, it would be better to know if this god exists in the first place. There may also be all kinds of other benefits to believing, or acting religious. For example,  prayers and rituals might create positive results in this life and in any afterlife.

On the other hand, if no gods exist, then it would seem that a great deal of resources are being wasted and a multitude of harms have been needlessly imposed. I think we can be more confident about some of these harms than others, and I divide them into three rough categories.

Harms that are Almost Certainly Caused by Religion or Theism

We can be most confident about the social divisions, strife, and psychological distress caused because of differences in religious belief. Families are divided, moms cry for atheist or apostate children they believe destined for Hell. Some believers feel offended or guilty over sin and blasphemy and so on. Also, a lot of money and time is being spent on religious buildings and rituals which could be used more directly for alleviating social problems, for building community, or simply for entertainment. I would also place the refusal of secular medicine on religious grounds in this category.

Harms I Think are at Least Partly Caused by Religion or Theism

There are of course many more troubling issues, but these are also more difficult to link to religion or theism. Terrorism, genocide, and crimes against humanity, such as genital mutilation, seem quite often religiously motivated, and religious justifications are commonly advanced for them. We also have discriminatory views and practices against equity-seeking groups (such as homosexuals and women) that seem to fall into this category as well. But we cannot deny that there are sure to be social, economic, and psychological causes for these harms too. It may very well be that if no one ever believed in any gods, something like the Crusades, the Inquisition, Al-Quaeda, ISIS, and the Westboro Baptist Church would have happened anyway. Of course, the same can be said for the many charitable activities and goodwill for which religion is given as a justification. These kinds of things cut both ways.

I don’t think we know what the relative strength of possible causal factors are for these kinds of harms or good works, or that we ever will know. But what we can say with confidence, is that if theism and religion do play some causal role in these atrocities,  reducing the belief would lessen the harm. Even if there is no causal link, we are still better off in demonstrating atheism to be true, because at least we will have taken away a stated justification. Then again, if charity and goodwill are also partially attributable to religion, these too would suffer. But I think reducing the harms would likely be more beneficial on balance. I can of think good secular reasons for things like helping the poor and curing disease, but I can’t think of any for things like witch-burning, genital mutilation, or homophobia.

Harms I Suspect are Related to Religion or Theism

A harm which is probably the least easy to establish, is my view that theism actively encourages uncritical thinking and bad epistemology about important issues and this bleeds into other important areas. Theism is about things more important than life and death, such as the fate of eternal souls. When it comes to justifying these beliefs, it is not empirical evidence and logic that are employed, but rather tradition, wishful thinking, blind faith, ideology, and dogma. I don’t think that we can honestly say that people will suspend reason on these religious issues, but rely on reason alone for other important issues.

What Do I hope to Accomplish?

I know that many religious apologists will argue that their beliefs can be justified entirely by empirical evidence and/or reason. It is these arguments that I wish to address in these posts. I think all of their arguments can be refuted leaving only things like intuition and dogma to justify believing in any gods. If people still wish to use these to justify their positions, then there is not much anyone can do, but I think they must admit they are in a weaker position.

I don’t think anyone will read single a post here and change their minds. But I think efforts like this provide a counterweight to the well-organized and well-funded projects intended to justify theism. I think counter-apologetics are helpful to thoughtful theists in their journeys  to reason and out of religion, lessening the harm described above.

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My Beleifs – A Comment Becomes a Post

I was writing this in a comment in a blog called Strange Notions. I have not posted anything here for a while and I thought it might make for some interesting reading. It is a comment to an article titled: How to Perfectly Know the Existence of God, by , and it is basically Aquinas’. It is on the website “Strange Notions.”

I am responding to a post by someone saying that if you can’t proof with 100% certainty God does not exist,

“…why [are] atheists (specially on the internet), they’re always trying to deny or disproof God?… I think this is where faith comes [in] , I don’t need 100% proof to believe in God, what I have is enough for me. But atheists, have this same faith to not believe.”

Here is my response:

A God or pantheon of gods may exist. Indeed, all kinds of supernatural possibilities are… possible. The question is how likely are they, given what we observe? Is it reasonable to believe in them?

Generally atheists on the internet are challenging assertions of knowledge of a god, or reasonable belief in a god, or, as is here in this very piece, that perfect knowledge that a god exists can be demonstrated with relative ease.

I agree, you don’t need 100% proof to believe in something, nor do you need 100% proof to reject believing in something. But we can make arguments about what is reasonable to believe based on what we observe.

As for faith, it depends what you mean by that word. I believe things when there is a reasonable basis to do so, based on evidence. I see no point in using the word “faith”.

Generally, atheists like myself lack a belief in any gods because what is presented to us is too vague, or there simply is not a good enough evidence to believe in them, particularly since these gods and other divine beings are claimed to do things that science tells us are impossible. Moreover, particularly with the Christian god, there are large problems of it engaging in acts I consider to be obviously immoral and unconscionable, which are not sufficiently explained by theists, but which are very understandable as historic myths written down by iron age mystics based on theology, oral tradition, and straight up creative writing.

In terms of the arguments against god, particularly the Christian idea of a god, here are a few good positive atheist arguments:

The argument from evil/suffering. (If just one instance of the suffering that seems to be pointless to us, is in fact pointless, there can be no all-powerful, all-good deity, that cares about us.)

The argument from non-resistant unbelievers. (If there is just one person, who honestly does wish to be in a loving relationship with god, and is not, no god exists.)

The argument from non-god objects. (If god created the universe, and he had the option of not creating it, the only good option was not to create. Before elements of creation with free will existed, the universe was populated by perfection and ultra goodness alone. It is impossible to improve upon this, therefore by creating other conscious beings with the capacity for sin and immorality, God could only create the risk of negative effects. It could only degrade his perfection.)

(You will note all of these arguments are related to Justin Scheiber. He is pretty much the only and definitely the individual I have come across, who makes positive atheist arguments.)

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The Non-Conference

November 1, 2014 there will be a conference in Toronto for non-believers. Please come if you can. More info at http://www.thenon-conference.com/

The-Non-Con-Ad

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I Have a Problem with Religion, Not Irrationality.

I do not have a problem with myth, fantasy, imagination,  nonsense, silliness, inspiration, or fiction. I do not even have any inherent problem with arbitrary decision-making, subjectivity, ignoring evidence, or irrational beliefs! I do not think there is anything wrong with these things in and of themselves.

Magic mirror

I have a problem with beliefs based on these things being relied on for important practical decisions. I have a problem with them being considered as important as the health and welfare of human beings. I am especially concerned if they are characterized as the most important beliefs.

I would like to advance a definition of “religious” that captures both this concern and the common usage of the word.

The definition I am advancing does not list set of criteria, such as worship, or a belief in deities, or super-naturalism. I find defining religion in this way renders the definition being either too narrow or too broad. If we limit religion to theism, we exclude Scientology, Raelianism, Taoism, and some forms of Buddhism, all of which are intuitively “religions”. If we expand the definition to something like ‘a perspective on questions of ultimate concern’ we include all kinds of secular philosophy and personal views that don’t seem to fit with what we mean by “religious”.

We also have this phenomena of feeling like some forms of otherwise secular activity are properly characterized as “religious”. We might say someone is not merely an environmentalist,  but is “religious” about it. But when we use the word in this way, I think we really are engaging the same general concept as when we talk of people being “religious” in the theistic sense.

I think all of these things have one aspect in common: a relationship between irrational beliefs and their application to important aspects of human life. The definition I propose is:

“A belief’s religious significance increases, when its personal importance varies inversely with its rational basis.”

In other words, a belief is more “religious” when it is relatively more important, but has less of a rational basis.

If we make “RS” to be “religious significance”, “PI” to be “personal importance” and “RB” to be “rational basis”, the definition can be read as follows:

“RS = PI ÷RB”

By “personal importance” I mean beliefs about things like morality, health, life and death, and whether or not one is going to suffer eternal conscious torture. Contrast this to the importance we give to beliefs about entertainment or hobbies.

By “rational basis” I mean the ability of the belief to be established by scientific, historical, or journalistic methods to professional standards. The more a belief can be established by these methods the more of a rational basis it has.

Needless to say, such a definition does not result in a clear method for placing beliefs into the category of “religious” or “secular”, but I think it draws out what we are getting at when we call something distinctively “religious”.

Lets us look at some examples.  Lets take three Christian beliefs:

  1. the belief in existence of Jesus,
  2. the Resurrection of Jesus, and
  3. that Jesus had “INRI” inscribed on the cross he was nailed to.

By the existence of Jesus, I mean did a human named Jesus live from roughly year 0 to 33 A.D. in Palestine and was crucified by the Roman Empire? Depending on your perspective, this can have either a very high or low Personal Importance. In the context of Christianity, this is, as I understand it, a prerequisite for salvation and eternal life after death. For non-Christians of course it may be trivial or neutral. Let us take the Christian perspective and attribute a very high rating of Personal Importance say 75 out of 100.

This issue also has a pretty high Rational Basis. While not universally accepted, most historians, Christian and otherwise, accept that such a person existed and was crucified. Let us also give it a Rational Basis rating of 75. Applying the algorithm, we have a Religious Significance of 1. (Note to non-Christians, for whom this issue us unimportant, it scores even lower.)

On the question of Jesus’s resurrection, I would attribute a Personal Importance value for this as 100, for everyone. If Jesus really did die and come back to life as a means to save us from damnation (however defined) and to provide an avenue to eternal life, this would be enormously important for any human being. However, the Rational Basis for this claim is quite low. Science tells us that such an occurrence is extremely unlikely if not impossible, it requires something supernatural and contrary to established scientific laws in order to happen. Historians will not generally accept it as true, and so on. Being charitable to this claim, let us give it a Rational Basis rating of 5. This results in a Religious Significance rating of  20.

On our final claim, I think it the question of  whether “INRI” was inscribed on the cross or not, is marginal, if perhaps interesting. Let us give it a low Personal Importance rating of 5. But, it is accepted by historians as quite likely true, so let us give it a Rational Basis rating of 75. This gives us a religious significance of .07.

I think these ratings fit well with our intuitions of how important these various claims are to Christianity in the religious sense. That Jesus existed (score 1) is important to Christianity, but not as important as the resurrection (score 20). Whereas the question of what the Romans wrote on his cross, if anything, is quite insignificant (score 0.07).

The same seems to apply to non-theistic uses of the term “religious”. If we take a spectator sport analogy, we say someone is religious about hockey when their fandom exceeds what most of us would consider reasonable. If someone misses a surgery to watch the final, we would call them religious about the sport.

Moreover, in circumstances where the rational basis is quite low, such as in the case of  art and taste, we don’t consider someone to be “religious” about it until the personal importance rises to a certain level.  For example, a Star Trek fan becomes “religious” about it when she refuses to take off her Starfleet uniform when attending jury duty.

This phenomena of irrational beliefs being given high personal importance is also at play with “alternative” or “complementary” medicine. But I admit, the term “religious” may not fit as well in this context. That is until someone ignores real medicine in favour of something like homeopathy for a serious condition. I think we might label these people as acting religious, but we would more likely characterize these beliefs as ignorant or dogmatic, two terms that also seem to fit quite well in describing religious beliefs I would say.

Ultimately, I do not care what label people use, but the term “religious” seems to fit well for the set of beliefs and actions that I find concerning in this sense, and this analysis unites my interest in anti-theism and other skeptical issues. I know most religious folk will object on the basis that they believe their beliefs are rational, based on evidence, science, history and so on. I usually disagree, let’s have that discussion.

Believe what you like! Enjoy art, fiction, and whimsy and allow them to enrich your life. It seems obvious to say this, but when you start to talk as if these things are reasons to take a belief seriously, I will be concerned. If I think your belief will affect the rights, health or welfare of myself or others, I will try and stop you. To the extent I “attack” religion, it is this aspect I am going after.

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Big M is Kind of a Big Deal

On Sunday, May 30, 1982, police officers of the City of Calgary attended at premises owned by Big M and open to the public. They witnessed several transactions including the sale of groceries, plastic cups and a bicycle lock. Big M was charged with a violation of s. 4 of the Lord’s Day Act.

What a crime! It is hard to believe that thirty years ago you could become a criminal in Canada for operating a business on a Sunday. The law was overturned in “R. v. Big M Drug Mart Ltd.” It was the first major interpretation of the new Canadian Charter of Rights and Freedoms and it struck down the Lord’s Day Act as a violation of religious freedom.

The case, penned by universally revered and respected Chief Justice Brian Dickson, held that a religious purpose is not a legitimate purpose for Canadian legislation and that a law enacted for a purely religious purpose violates our Constitution and cannot be saved for any reason.

sundayshop

Nothing spawns a movement like shopping.

The law in question said:

4. It is not lawful for any person on the Lord’s Day, except as provided herein, or in any provincial Act or law in force on or after the 1st day of March 1907, to sell or offer for sale or purchase any goods, chattels, or other personal property, or any real estate, or to carry on or transact any business of his ordinary calling, or in connection with such calling, or for gain to do, or employ any other person to do, on that day, any work, business, or labour.

As in any Charter case, the Court had to examine the purpose and effect of the legislation In doing so, it recognized that there were two possible purposes for such a law, “one religious, namely securing public observance of the Christian institution of the Sabbath and the other secular, namely providing a uniform day of rest from labour.” Contrary to how almost identical laws in the United States were interpreted, the Canadian Supreme Court held that this law had a religious purpose. To understand why, we need to look at the division of powers between the federal and provincial governments.

The Court looked back at the history of laws promoting Sunday observance, dating all the way back to the King of Wessex in the 7th Century, if you can believe it. Early on in Canadian jurisprudence, provinces attempted prohibit Sunday work under the powers afforded them by the “property and civil rights”, and “merely local or private nature” provisions of the Constitution. These decisions rejected these laws, finding that they were criminal prohibitions under the exclusive jurisdiction of the Federal Parliament. The Federal Legislature then enacted a criminal law, “The Lord’s Day Act”  in 1906, prohibiting work on Sunday and allowing the provinces to ban it as well.

Had the provincial laws been enacted for the purpose of giving people the same day off, they would have survived the division of powers challenge as having a property and civil rights” purpose. Since they did not, the 1906 criminal law challenged by Big M was clearly not for the purpose of giving people the same day off. Therefore, there had to be some other purpose, and the court held that it was definitely a religious purpose. Justice Dickson wrote “Its religious purpose, in compelling sabbatical observance, has been long‑established and consistently maintained by the courts of this country.

This is in stark contrast to how the cases played out in the United States, where similar legislation was indeed held to be for the purpose of a day of rest, according to Dickson J, “in order not to run afoul of the religion clauses of the First Amendment”. Since we have no explicit separation of church and state in Canada, there may have been little fear of these laws being quashed for establishing a religion, particularly back in 1906. But then we enacted the Canadian Charter of Rights and Freedoms.

Justice Dickson did not mince words in killing the law:

To the extent that it binds all to a sectarian Christian ideal, the Lord’s Day Act works a form of coercion inimical to the spirit of the Charter and the dignity of all non‑Christians. In proclaiming the standards of the Christian faith, the Act creates a climate hostile to, and gives the appearance of discrimination against, non‑Christian Canadians. It takes religious values rooted in Christian morality and, using the force of the state, translates them into a positive law binding on believers and non‑believers alike. The theological content of the legislation remains as a subtle and constant reminder to religious minorities within the country of their differences with, and alienation from, the dominant religious culture. Non‑Christians are prohibited for religious reasons from carrying out activities which are otherwise lawful, moral and normal. The arm of the state requires all to remember the Lord’s day of the Christians and to keep it holy. The protection of one religion and the concomitant non‑protection of others imports disparate impact destructive of the religious freedom of the collectivity.

The Court held that a religious purpose is never a valid legislative purpose in Canada. It did so indirectly by rejecting the argument that irrespective of original purpose, the effect of the legislation was secular, to give a day of rest:

Once the purpose has been classified as offensive, then the legislation cannot be saved by permissible effect. As a result it is unnecessary to determine whether the secular effect here in issue is sufficient, or whether a secular effect could ever be relevant, once a finding has been made that the legislation is invalid by reason of an impermissible purpose.

This is important to keep in mind when considering whether Canada has the separation of church and state or is secular. The Canadian constitution prevents the legislature from ever having a religious purpose in its laws. Any religious purpose invalidates the law, even if it doesn’t prevent or compel a religious practice directly.

Another interesting element of the case, of particular note given the recent “Hobby Lobby” decision, is that the “person” here asserting a violation of Freedom of Religion was a corporation. This is because it was the corporation that was charged criminally as a legal “person”. Accordingly, there was no issue of standing for Big M to advance its argument.  To avoid conviction the corporation was able to advance a challenge that the law violated the Charter. The Court held that the fact that it was a corporation was irrelevant, as was its inability to hold religious beliefs. “An accused atheist would be equally entitled to resist a charge under the Act.

In Canada, we can become troubled by the fact that our Constitution allows for state funding of religious education and that the Charter itself proclaims the supremacy of God. It is refreshing to look back at a case like Big M and remind ourselves that our government is secular and cannot make laws for religious purposes.

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