"Separating Church and State Our Tradition"

This column originally appeared in a November, 2006, issue of the The Windsor Star.

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Separating church and state our tradition

Jeremy Patrick, Special to The Windsor Star

Published: Monday, November 27, 2006

Is the separation of church and state Canadian? Much has been written recently about the increasing influence of the "religious right" in Stephen Harper's Conservative government. The commentators share a fear that decisions affecting all Canadians are increasingly being made on the basis of religious faith rather than sound public policy. In the United States, controversies over the proper relationship between religion and government are often settled by judicial invocation of the "separation of church and state" reflected in the American Constitution's Establishment Clause: "Congress shall make no law respecting an establishment of religion."

Canada's Charter of Rights and Freedoms contains no such clause, however. Although it guarantees an individual's freedom of religion, it does not explicitly forbid the state from endorsing or supporting a particular religion (or religion in general). During the last federal election, Harper stated that "the separation of church and state is an American constitutional doctrine, not part of Canada's legal or political tradition." This simply isn't true. Indeed, Canada has a long history of separating church and state in most contexts.

In the late 1700s and early 1800s, the government provided extensive privileges to certain religious denominations. The Church of England, for example, received special favouritism in political appointments, the selection of legislative and military chaplains, and marriage laws. In Quebec, the Roman Catholic Church was closely enmeshed with the provincial government. However, these close links between religion and government slowly fell away. The enormous controversy over the Clergy Reserves is a good example of this trend. In the Constitutional Act of 1791, one-seventh of all public land in Upper and Lower Canada was allotted for the support of Protestant clergy. Income from this land, comprising almost two and half million acres, was channeled solely to the Church of England. Not surprisingly, this provoked intense jealously among other religious denominations, and the controversy was seen as a contributing cause to the failed rebellion of 1837. To placate some of the denominations, the Reserves were partially opened to other denominations in 1840. According to the great Canadian religious historian John Moir, even the mere existence of the Reserves in this form led to a 'bitter and noisy' dispute, and after several more years of controversy, the Reserves were finally abolished in 1854.

The disentanglement of religion from government did not occur overnight, it was a gradual process that is still going on today. However, the proclamation of the Charter in 1982 sped up this process. Although theCharter doesn't have an "Establishment Clause" per se, the courts have used other provisions of the document to reach the same effect. For example, the courts have held that the Federal Sunday Closing Act was unconstitutional because it had a religious purpose; that public schools could not teach Christianity or begin the school day with recitations of the Lord's Prayer or Bible verses; that legislatures cannot begin their meetings with sectarian prayers; and that property disputes between competing factions of a church must be resolved by secular principals.

There are still some remnants of an earlier age, but they appear to be of the relatively minor, non-coercive type of symbolism that in the United States is referred to as "ceremonial deisms." For example, the Canadian national anthem makes reference to a deity, the House of Commons opens with an avowedly non-denominational prayer, and the Queen, formal head of state, is required by English law to be Protestant. Otherwise, with one exception, it's hard to think of any legislation or practices in Canada that would constitute a clear violation of the American Constitution's Establishment Clause as interpreted by the U.S. Supreme Court. The major exception, of course, is the existence of publicly funded religious schools in Ontario. Since Confederation, the Constitution has guaranteed the right of Catholic schools in the province to receive support from the government. This is clearly not a minor "breach" in the "wall" between church and state. However, even this link between church and state is allowed only because it is specifically guaranteed in the Constitution. Otherwise, the Charter'sguarantee of religious freedom and equality would probably be applied by the courts to invalidate the practice. The recent voluntary decisions to end public support of religious schools in Newfoundland and Quebec are simply further examples of the ongoing trend to separate church and state in Canada.

New controversies always affect how the state views its role vis-a-vis religion. Should Sharia law be enforceable? Can courts force an Orthodox Jewish husband to ask for a religious divorce?These are all questions that will have to be answered in the future. What's clear is that the country's legal and political history demonstrate that the separation of church and state is a Canadian value, not just an American one.

Jeremy Patrick is an Assistant Professor in the American-Canadian joint degree program at the University of Detroit Mercy School of Law. His article "Church, State, and Charter: Canada's Hidden Establishment Clause" is forthcoming in a comparative law journal.