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mercredi 10 janvier 2007

Democracy and Religious Obligations : an Impasse ?

par Diane Guilbault, collaboratrice de Sisyphe

Écrits d'Élaine Audet

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These days, a lot of talks have been going on about religion and especially about the difficulty of coexistence between religious obligations and the principles of democracy and equal rights to which our community identifies. We must consider that the number of accommodations we ask for are directly related with the status of women and I, as a woman and as a citizen shall add my ten cents’ worth into the chaotic debate of what religious obligations should be in a secular and democratic community and what accommodations should be made.

Is the Quebec community secular ?

We know what influence the Catholic Church has had on the community of Quebec. But there is no doubt that ever since the Révolution tranquille, the state has taken many steps that demonstrate the will of our community to free itself from religious rules.

Let us not forget that democracy was born from the need that we humans have for being in charge of our collective destiny and therefore our need to free ourselves from fixed religious rules. As a matter of fact, democracy is characterized especially by the possibilities it gives its citizens to not only choose their representatives but also to choose the rules for community life and adopt a system of laws that can always be questioned as opposed to a system of religious laws which were mostly written more than a thousand years ago. Democracy has transformed values which were rules in religion - interdiction to murder, to steal and so on - and it has rejected what seemed incompatible with values in a democracy, such as equality between the sexes. In the light of these characteristics, there is no doubt that Quebec is a democracy in spite of its flaws.

Moreover, numerous events speak for the choice which Quebec made for secularism, for instance the constitutional amendment the government of Quebec claimed and obtained during Ms. Pauline Marois’ mandate in order to secularise the school boards. Think about it : Because the majority considered that the public insisted on secularising the school boards, the state of Quebec chose to put a stop to rights that were constitutionally granted to Catholics and Protestants. Indeed, to a society that had turned pluralist (a society made of non-believers and believers of various confessions), it was important to respect each individual’s freedom of conscience, important to prevent the conflicts of values between confessions and the confrontations that could have resulted from them, in other words, in order to establish a context that would allow peace in the community, it seemed important to secularise the civil institutions and limit the public display of religious beliefs.

When, in the midst of the present debate on accommodations, we are aware of the implications a constitutional change would have, we cannot ignore the symbolic outreach of Quebec’s decision when its demands for an ending to Article 93 in the Canadian Constitution.

Even if secularism is not named as such in any given text, there are proofs in, to say the least in our Civil Code and Criminal Code which are tools invented by the actors of democracy, that the community of Quebec from now on has turned secularist. So have its public institutions. Another element is worth considering : all paid holidays have long been secular and are granted to all, whatever their faith. They are, of course, born of our Christian history - which we must not be ashamed of - but they have stopped being religious holidays. There being a cross on top of Mount Royal is not a proof that Quebec is a religious community either : no one has to kneel before it. This cross, like all churches and wayside crosses are part of our patrimony, of our history. France, one of the best known countries for being secular, has not destroyed its cathedrals ! In order to prove our secularism, should we act like the Talibans who have destroyed their magnificent giant Buddhas on the pretence that the Buddhist imagery is anti-Islamic ? We must expect more from a country whose motto is "I remember"...

In my view, a secular community is a community whose rules and regulations are not founded on a religion but on laws that are decided upon by a democratic forum - such as a parliament, a national assembly and so on...-, whose members have been elected and whose public institutions do not subscribe to any faith. This is the choice Quebec has made.

Reasonnable accommodations

To accommodate is nice when it allows preventing discrimination : think for instance of the blind being allowed to take their dogs to restaurants, of a company desk being adapted for a handicapped employee in a wheel chair. Also, accommodation is not a must if it means excessive constraint. These accommodations have general approval.

It is clear that the accommodations that trigger more negative reactions are those granted on the subject of religious duties. In my view, this is principally caused by three different reasons : They question the secularity of public institutions and deny the principle of equality between sexes. Also, whereas the demands made by a handicapped person aim at conciliating the effects of an uncontrolled condition (the handicap), the accommodations that are demanded for religious reasons and, as a result, would not be touched by the general rules that have been decided on in the name of the peoples’ welfare, are made in the name of obligations that have voluntarily been self imposed. Certainly, the growing embarrassment of many of those citizens who are faced with compromising pleas for religious reasons can be explained by these three factors.

Moreover, the notion of excessive constraint in an accommodation made in the case of a handicap cannot be applied in the case of religious obligations. As a matter of fact, the accommodations that are demanded do not cost a lot of money - think of the kirpan at school, or the veil, or of the door-to-door canvassing of the Witnesses of Jehovah members ; still, the consequences of these accommodations are much more important than the consequences of an accommodation made in the case of a handicap, because they alter the choices made by an entire community. So, we can ask this of ourselves : are these accommodations really necessary in order to respect freedom of faith ?

Equality of the sexes vs religious duties

Through time and jurisprudence, the concept of freedom of faith has taken a dimension which could not have been foreseen by the legislator in 1975, when the Quebec Charter was adopted, nor the Canadian Charter. It was before the spectacular rise of religious fundamentalism. Up to the 80’, the West was engaged in a general pro-secularism move and no one (perhaps with the exception of Malraux) could have imagined that religious wars would make a forceful come back.

I confess my bewilderment at the Supreme Court’s concept of freedom of faith :

Freedom of religion according to the Supreme Court of Canada
46. To summarize up to this point, our Court’s past decisions and the basic principles underlying freedom of religion support the view that freedom of religion consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials.

47. But, at the same time, this freedom
encompasses objective as well as personal notions of religious
belief, “obligation”, precept, “commandment”, custom or ritual.
Consequently, both obligatory as well as voluntary expressions of
faith should be protected under the Quebec (and the Canadian)
Charter. It is the religious or spiritual essence of an action, not
any mandatory or perceived-as-mandatory nature of its observance,
that attracts protection...

With this interpretation of freedom of religion, applicants for an accommodation in the name of religious duties have an advantage because they do not need to prove anything but their good faith. But, why is it that in a democracy, an individual claim based on so called divine - and hence, unverifiable - obligations, weighs heavier than the choice made by a community after several years of discussions and legal, let alone constitutional, amendments ?

How is it that, under the pretence of freedom of religion, a secular community is being pushed into protecting, both in public and in private, customs and duties which, being called religious, automatically acquire a sacred and therefore irrefutable character ?

In the light of many verdicts - some of which have been highly covered by the media - that were pronounced in favour of accommodations made in the name of religious obligations, numerous public institutions think that to accept demands that will question the principles of equality between sexes is to show broadness of mind and respect for the Charters : i.e. the icing over of the window panes of a gymnasium in order to hide from a Hassidic Jew the figures of women he must not see, the establishment of a timetable which, based on an apartheid formula, will separate men and women in a swimming pool, the compelling of police women to abide by the sexist convictions of fundamentalist religious citizens, etc... We have not yet forgotten the amount of vigour that was put into fighting the coming of Charia based courts in Ontario... Sexism is evidently not as bad a sin as racism !

Coming out of the impasse

That many citizens, men and women, feel gagged by the decisions of the Supreme Court is no surprise. As a matter of fact, up to now, we have had the impression that the courts have benefited the claims that favoured a public religious come back, thus condemning our community to the past eras of religiosity which Quebec has only just laboriously left behind.

Nonetheless, many of us question ourselves as our public areas are constantly gnawed by claims of religious nature. But whose voices do we hear ? On the one hand, we hear the voices of people who specialize in intercultural relations or in religious sciences, the voices of magistrates, of pressure group members who speak in favour of compromising and, on the other hand, we hear the voices of intolerant citizens who impute solely to the immigrants the trouble we have in controlling religious fundamentalism. Not much space is left for the feminist and democratic citizens’ voice. It is now time they were heard.

In order to get out of the impasse, a debate must be forced on about shedding light on certain points, some of which I believe have their core in the following questions :

    • In the name of which principle, the so called religious duties (or duties proclaimed to be religious by a claimant) should have precedence on civil obligations that were democratically adopted ? (Such as dress codes, security rules, mixed classes provided in CLSC, etc.)
    • Regardless of all the existing evidence, do we need to be officially proclaimed as being secular for Quebec to be at last recognised as such ?
    • Must our public institutions be neutral - where all faiths are brought to live together and accommodate one another - or must they, on the contrary, be secular ? - where the only duties whose observance is protected are duties that have been democratically accepted and which are, consequently, democratically revocable ?

In a democracy, the courts serve the people. If legal or constitutional amendments are required in order to better manage and restrain the concept of religious obligations as well as their places in the public space, then the citizens can and must demand them so that the community in which they live reflects the values of the majority.

Translated for Sisyphe by Sylvie Miller.

On Sisyphe, January 10, 2007.

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Diane Guilbault, collaboratrice de Sisyphe

Féministe de longue date, l’auteure, qui a travaillé dans plusieurs organismes de défense des droits, s’intéresse particulièrement aux questions qui touchent la vie citoyenne. Diane Guilbault est l’auteure de Démocratie et égalité des sexes, publié en 2008 aux éditions Sisyphe. L’auteure est aussi membre fondatrice du Collectif citoyen pour l’égalité et la laïcité (CCIEL) créé à Montréal au printemps 2008.

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