“Freedom of religion has never implied, and should never imply, the elevation of any aspect of religious sacrament to the level of secular right. It is simply not appropriate for the state to validate, encourage or finance faith-based estates.
“State submission to special interests will do nothing more than heighten irrational feelings of superiority and strengthen unreasonable commitments to particularity. Rather than encouraging social peace, they will incite further irritation between religious and secular, straight and gay, as our legal system struggles to accommodate the inevitable explosions of legislation, regulation and exception.
“That every individual has a natural, moral, right to submit to canonical doctrine, undertake religious education or indulge in nonconformist lifestyles is not in question. But on no account should we allow their demands for material support, whether legal or financial, to prevail upon the patrimony of civil society by forcing that society to legitimize separateness and exclusivity in its public law. Catering to exclusive-and exclusivist-communities of interest is an aberration from, and an affront to, all that is best in our dynamic, and continuing, experiment in social democracy.”
~ “The Kirpan Decision: The Supremes Fail Again”
“Our war is not a civil war...but a Crusade...Yes; our war is a religious war. We, who fight, are soldiers of God and we are not fighting against men but against atheism.” This quote from Francisco Franco was a difficult one to include in this paper, but precisely because it is extreme it is apt. All believers in the fundamental justice of their parochial particularities and prejudices think they are fighting God’s fight and must bend the rest of us secular “heathens” to their will. And the strange thing is whether they are religious fanatics or proponents of “alternative” lifestyles they seek not only the sanction of scripture but the validation of the universal principles of hard-won liberal, secular, freedoms.
Herein lays the tragic failure of the Supreme Court’s decision in the Kirpan case. The Court has once again raised religious sacrament to the level of secular right. It is not only a submission and surrender to the screech of special interests which can now hardly be denied to others; but it is also a subversion of the traditions of secular western liberalism and a perversion of the very document that turned Canada from a statist Parliamentary democracy with all power vested in the executive to a Constitutional democracy where the sovereignty of the individual was held supreme over any imposition of state or collective dictate.
When Madame Justice Charron authored the unanimous opinion allowing the wearing of the Kirpan, she claimed that this view upheld the multicultural democracy that Canada was. She was wrong. Dead wrong.
Canada is not in any way a multicultural democracy. The Charter that she seemingly seeks to uphold guaranteed no special status or affirmative action for any particular group. It sought to establish a level playing field of equity of just consideration and equality of opportunity for all Canadians based on the protection of all individuals against discrimination as they pursued to the fullest their own individual growth and possibilities within the context of a free, secular and democratic society. Just as no prejudices were to be tolerated against personal choice, so no special considerations were to be enshrined to collective demands.
Indeed it was as individuals that we were now to have sovereignty over our own government based on those principles that would serve the universality of the Canadian commonwealth. John Porter’s idea of a Canadian “mosaic” had long ago been discarded as a bankrupt and foolish notion that was actually inimical to the progress of this northern Dominion. It seems the Supremes didn’t get the memo.
Pierre Elliott Trudeau’s purpose with the Charter was to enshrine the supremacy of the individual over any forms of discrimination by the state or demands of particularity by a collective, and to protect that supremacy with equal justice for all. Too often this purpose has been twisted by “progressives” who insist that it created new classes of group rights. It was never meant to do that.
The Kirpan decision now re-opens the floodgates to everything from the settled provincial debates against religious tribunals having status in family law issues to the state funding, and teaching, of religious schools and studies that was slowly being phased out. Ontario conservative leader John Tory has already voiced his support of funding for religious schools; Sharia court supporters are starting their clamor again even after rejection of the idea in Quebec and Ontario; and even the Canadian Jewish Congress, traditionally a proponent of classic western liberalism, has applauded the decision as a victory for freedom of religion. Its president said that “…a multicultural democracy like Canada requires that religious practices be accommodated unless there is a compelling reason not to, so long as there is a sincere belief the practice is a requirement of faith.” A sincere belief? Cannibals think they have sincere beliefs too. For that matter so do the Islamists who cut off people’s heads. That’s why Charron had it wrong. A democracy can be many things. It can be constitutional; it can be parliamentary; but there is no such political animal as a “multicultural” democracy.
This case should never have been accepted on the Court’s docket. The issue only arose because of mis-guided public safety concerns. Frankly, if Canada did not have an egregiously voluminous body of “preventive” laws; this issue would never have come up. These control measures on our behaviour are in and of themselves inappropriate. The school board should simply have been told that until someone was injured by the Kirpan, there was no issue. If the young man wearing it did injure someone intentionally he would be expelled. Simply put this was not a matter for state interference since there was no crime. Similar to the succah booths case which had elements of property rights involved, one of the issues that were discussed was the danger of a fire. Well, until there was a fire, until there was proof of public danger, that issue should also not have reached the highest court in the land.
Now the result of the Kirpan decision creates an opening to an era of Canadian religious wars.
Freedom of religion has never implied, and should never imply, the elevation of any aspect of religious sacrament to the level of secular right. It is simply not appropriate for the state to validate, encourage or finance faith-based estates.
Rabbi Jonathan Sacks, Chief Rabbi of the British Commonwealth, has written that “Religious law is like the grammar of a language. Any language is governed by such rules; otherwise it ceases to be a language. But within them, you can say many different sentences and write many different books.” His warning was about the dangers of those “many differences” being enshrined in public rules and regulations that would compromise the universalities inherent in western legal traditions that protect minorities from the imposed will of intolerant majorities precisely because they represent ideals of universal applicability to individuals and not equivalencies to the panderings to specific battling collectivites. Only thus can minorities ever be protected.
For the surrender of individual rights to perceived group rights can only lead to the slow erosion of the fundamental liberties we have fought and died for. Had Germany enshrined a respect for the rights of its most vulnerable and unempowered individual citizens - and had that idea taken root - there could not have been the mass murders of Jews, Gypsies, homosexuals, etc. The Soviet Union on the other hand had a constitution that protected group rights over the individual. The breadth of these so-called "rights" extended as far as granting "homelands" to many, including Jews. Yet under Stalin individual freedoms were so trampled upon that by the early 1950's one in four adult males had spent some time in prisons and gulags on trumped up charges.
The Canadian Supreme Court’s addiction to collective rights, and its continued obsequient obedience to almost any group that comes before it demanding them, makes it a body of knee-jerk reaction totally abdicating hundreds of years of western liberal justice and jurisprudence.
And the problem is not only in our country. The vehemence and violence of special interest groups in the pursuit of entrenchment of their demands into western legal corpus’, and the ancillary reaction of political correctness of governments, has gone so far that Italian Judge Luigi Tosti was recently sentence to seven months in jail and one year of exclusion from public buildings for refusing to sit in the presence of religious symbols in the courtroom. Instead of banishment, he should be admired for his courage for defending secularism and seeking the complete separation of religion from state. The Italian government owes him and global citizens an apology for its irresponsible action.
In a time of war against fundamentalist terror, it is incumbent upon every government to abolish any law and regulation that breaches the principle of a secular non–religious state. Religion is a private matter and all religiously -inspired notions and references must stay out of all laws and regulations. Too many have led and bled for this sacrosanct principle to be abandoned in the name of political expediency or moral relativism.
The Kirpan decision will open the door to sowing a whirlwind of exclusiveness and intolerance that will compromise the very consequence of this nation’s constitutional framework. All citizens have a right to the protection of equal and equitable consideration under one set of laws of universal application that reflect our common humanity. Nothing more, nothing less. Any prejudice to this principle in order to appeal to special interests will make the evocation of our noblest aspirations to tolerance and inclusion objects of dangerous derision. Instead of celebrating the great circumstance of our human commonalities – which should be the goal of a democratic society - we will be imprisoned by the laws and legislation of low limitation of narrow narcissisms.
In explaining what he meant when he said that the state had no place in the bedrooms of the nation, Trudeau stated that it was not the role of government to rule on questions of personal morals or morality. Either to the negative or to the positive.
As an example, he stated that the only valid role for the state in family law is strictly to interpret the “contract” between parties and the rights flowing from that. The bases of contract law as the fundamental construct for the interpretation of relations between citizens has been primordial since Magna Carta. Any demands by citizens to bring faith-based estates, or tribunals, to an equal level in public law should be considered illegitimate.
We are witnessing a regression that threatens us all. The siren calls for pseudo-religious rights to be insinuated into, or to fall under the protection of, the public corpus, are being made under the thinly-veiled tutelage of forces inimical to all traditions of constitutional liberalism. Neither adherence to canon law, nor fidelity to cultural origins, nor indulgence in sexual proclivities should be used as anvils upon which to beat the Charter of Rights and Freedoms into the contorted dimensions these various groups demand. It was not meant for that.
For this reason, the Supreme Court failed in its responsibilities in protecting the secular, pluralistic nature of Canada in its same-sex reference decision. Contractual civil unions existed. It was not up to the court to add another level of legitimization just because gays wanted secular court sanction for the religious sacrament called “marriage”. It was nothing but a political ploy and the Court once again succumbed and raised secular right to the level of religious sacrament.
State submission to special interests will do nothing more than heighten irrational feelings of superiority and strengthen unreasonable commitments to particularity. Rather than encouraging social peace, they will incite further irritation between religious and secular, straight and gay, as our legal system struggles to accommodate the inevitable explosions of legislation, regulation and exception.
That every individual has a natural, moral, right to submit to canonical doctrine, undertake religious education or indulge in nonconformist lifestyles is not in question. But on no account should we allow their demands for material support, whether legal or financial, to prevail upon the patrimony of civil society by forcing that society to legitimize separateness and exclusivity in its public law. Catering to exclusive-and exclusivist-communities of interest is an aberration from, and an affront to, all that is best in our dynamic, and continuing, experiment in social democracy.
Government’s proper role is to protect people from incitement and violence against their personal practices, so long as those practices do not violate the rights of others, and enforce the foundational principles of liberal democracy which are based on separation of church and state; independence of the judiciary; the supremacy of the people’s suffrage; and the sovereignty of the liberty of the individual over any corporate or collective demands of the state.
Expanding “rights” over and above these basic responsibilities will only result in contracting them by the chipping away at the foundational principle of justice for all under equal law. We need political leadership with the courage to rectify the initially unjust inherent advantages granted to religious denominations, such as funding of schools based on religion, not add to those wrongs for the sake of political expediency.
The state’s appropriate role is to protect people from incitement and violence against their personal practices, so long as those practices do not violate the rights of others. Any demands by citizens to bring faith-based estates, or tribunals, to an equal level in public law should be considered illegitimate in a free society.
To see where a decision like the Kirpan case can lead, it is instructive to look at a 1995 interview posted on the Canadian Society of Muslims website where Mumtaz Ali declared: “Do you want to govern yourself by the personal law of your own religion, or do you prefer governance by secular Canadian family law?” Decisions such as the one we have just seen by the Supreme Court will make hundreds of groups in this country think they can have it both ways. Parallel systems of law. This is nothing less than the surrender of everything this country stands for, and totally inimical to the principles of a democracy. Equal justice for all.
In 1865 Thomas D’Arcy McGee said that “This Northern Dominion can grow—under one flag and one set of laws—into one great nation. There is no possibility for that greatness--under that same flag and under those same laws— if we succumb to a thousand squabbling particularities.” Only with this in mind can we as Canadians ever vindicate the possibilities of our own capacities.