No one should be denied equal treatment in seeking a public benefit because of his or her religion. This is a bedrock legal principle of liberal democracies worldwide.
The European Convention on Human Rights prohibits religious discrimination. The United States Constitution “prohibit[s] governments from discriminating in the distribution of public benefits based upon religious status or sincerity.” And in Canada, section 15 of the Charter of Rights and Freedoms guarantees that no one will be denied a benefit to which they are otherwise entitled based on their religion.
Public support for these principles in Canada is reflected in the outcry over Bill 62, Quebec’s new law that effectively denies access to public services for religious minorities who wear face coverings because of their sincere religious beliefs. A constitutional challenge has been launched, and last month, the Quebec Superior Court temporarily suspended the law pending that litigation.
But the threat of religious discrimination continues to loom.
Much less attention, for example, has been afforded to other provisions in Bill 62 that discriminate against faith-based childcare programs. Private childcare providers in Quebec are eligible for public subsidies, but any that teach religious beliefs or practices are now automatically disqualified (section 20). It seems private daycares that begin their day with toddler yoga can receive government funding, but those that begin with prayer or Bible stories (as some childcares operated by religious communities do) cannot.
The Prime Minister has expressed concern about aspects of Bill 62, but his government has mirrored that Bill’s discriminatory approach in recent changes to its own Canada Summer Jobs program (CSJ). That program, which provides funding to help small businesses and charities create summer jobs for students, now requires Canadian employers to “attest” that both their jobs and their “core mandate” “respect” certain “values” identified by the federal government, including access to abortion and other issues on which there is a divergence of (religiously informed) beliefs.
Ironically, both the Quebec and federal governments’ initiatives undermine the very principles they claim to promote.
The stated purpose of Quebec’s Bill 62, for example, is to “foster adherence to State religious neutrality,” but it runs counter to much of the Supreme Court of Canada’s case law on that subject. The state’s duty of religious neutrality, which flows from the right to equal exercise of freedom of conscience and religion guaranteed by the Charter, requires governments to accommodate religious diversity, not extinguish it. Governments must neither favor nor hinder any particular belief. Creating a “neutral public space” does not mean the homogenization of private players—childcare providers included. Rather, it requires that those who adhere to secular beliefs not be given preference over those who adhere to religious beliefs, and vice versa.
Yet, in the name of “religious neutrality,” Bill 62 effectively imposes a requirement of non-belief in order to access a generally available benefit. This is anything but neutral. The Supreme Court of Canada has made clear that the government cannot dictate to a religious school—even one that receives public funding—how to teach or transmit its faith; this violates the Charter.
Similarly, in introducing changes to the CSJ program, the federal government is doing the very thing it accuses its targeted organizations of doing: failing to “respect individual human rights, the values underlying the Charter of Rights and Freedoms and associated case law.”
Like Bill 62, the new CSJ regime undermines state neutrality (which is, incidentally, one of the “values underlying the Charter of Rights and Freedoms”); it further undermines the rights and freedoms enshrined in the Charter itself, including freedom of opinion, expression, religion, and conscience. All of these guarantees protect the right to hold and express diverse views on moral issues without reprisal—including such issues as abortion. To insist that all must conform to the ideological mold of the government of the day offends the very notion of a “free and democratic society” espoused in section 1 of the Charter.
Some have argued that denying public funding does not impede religious freedom since organizations are still free to continue operating according to their religious beliefs. This may be true, but that freedom comes at the cost of absolute exclusion from the benefits of a public program for which they are otherwise fully qualified. The United States Supreme Court recently ruled against a state government for conditioning its public benefits this way, and Canada’s Supreme Court has emphasized that “freedom of religion is not accommodated if the consequence of its exercise is the denial of the right of full participation in society.”
Government actions that deny people equal access to work and employment (which is considered a “fundamental aspect” of Canadian society) because of their religious beliefs also run afoul of the Charter’s equality guarantee. The Supreme Court has affirmed that discrimination in this area marginalizes equality-seeking groups from the fabric of Canadian life. This includes religious minorities who cannot subscribe to prevailing majoritarian viewpoints on such issues as abortion and sexuality. Compelling minorities to publicly affirm “values” contrary to their religious conscience—in the name of the Charter, which specifically protects against such compulsion—epitomizes intolerance and illiberalism.
Granted, organizations do not have a freestanding, automatic right to public subsidies. But they do have the right to equal participation in a government benefit program without having to disavow their religious beliefs. To paraphrase the Supreme Court: where the government puts in place a scheme to provide a benefit, that scheme must comply with the Charter. It is discriminatory to refuse to allow religious organizations—solely because of their religious character—to compete on equal terms with secular organizations for public funding.
The federal government insists that its requirements do not discriminate on the basis of religious character, stressing that religious affiliation “does not itself constitute ineligibility for this program.” This is technically true, as long as the organization’s religious beliefs align with the government’s position on certain issues. If they do not, its representatives are apparently expected to disavow – or at the very least, suppress - those beliefs even though they may form an integral part of their identity.
In recent attempts to clarify the CSJ regime, and in response to opposition mounting across partisan and ideological lines, government officials have stressed that their measures only target conduct, not beliefs. A recently published “supplementary information” guide states that the government considers an organization’s “core mandate” to mean its “primary activities” and not its “beliefs” or “values.” It provides the example of a group formed to explicitly advocate a pro-life message (characterized as “seeking to undermine existing women’s reproductive rights”) as one that would be ineligible for funding. By contrast, religious organizations engaged in other activities that happen to hold “anti-abortion beliefs” could be eligible (presumably as long as those beliefs are not expressed through their activities in any way).
The government may think that organizations can neatly segregate their beliefs from their “core mandate,” but for most religious organizations, it is not that simple. Their “core mandates” are rooted in belief. Even the government’s lead minister overseeing the Canada Summer Jobs file describes a “core mandate” as an organization’s “principal reason for being.” Yet she asserts that “core beliefs” and “core mandates” are distinct, going so far as to suggest that Catholic organizations need not fret over signing the attestation, since their “core mandate” is not defined by what they are opposed to but “around spreading the word of God and Jesus Christ.” This is perhaps the most troubling development: the idea that the government might interpret a religious organization’s “core mandate” by suggesting what is, and is not, required by the tenets of its faith.
In reality, a religious organization’s activities are indistinguishable from—and a manifestation of—its beliefs. For the government to tell believers that they are free to “hold” beliefs, but may be denied a privilege if they (lawfully) express them through their (otherwise eligible) activities, hardly constitutes religious accommodation.
Ultimately, the government is still disadvantaging groups based on their beliefs, not their activities, despite assertions to the contrary. Public advocacy on the issue of abortion is an eligible activity for CSJ funding, it appears, but only for those on the pro-choice side of the debate. Further, the government’s overarching goal remains to “prevent youth . . . from being exposed to employment within organizations that may promote positions that are contrary to the values enshrined in the Charter of Rights and Freedoms and associated case law” [emphasis added]. Putting aside the problematic assertion that the government’s position on access to abortion is mandated by the Charter (it is not), its preoccupation with an organization’s “position” on “reproductive rights” and other issues betrays the ideologically driven nature of its funding formula. If it were otherwise, there would be no need for an “attestation” about a “core mandate” at all: there would simply be a list of specific ineligible activities, regardless of an organization’s position or beliefs. Instead, despite all of the government’s post facto attempts to downplay its effect, the wording of the attestation remains unchanged. Organizations must still affirm that their “core mandate” will “respect . . . reproductive rights”—which, for many, will be understood as stating that they “agree” with the government’s position on that issue.
Bill 62 and the new Summer Jobs program both penalize religious participants by denying them an equal share of the rights, benefits, and privileges enjoyed by other citizens. In implementing these measures, the federal and Quebec governments appear to be sending a message: certain religious beliefs and practices are less important or less valid than others. But according to the Supreme Court, this is unacceptable; it casts doubt on the value of those who adhere to these beliefs and denies their equal worth. Governments should show no preference as to the religious beliefs and practices of grant recipients (assuming, of course, that those beliefs and practices are lawful). This is necessary in order to preserve “a neutral public space that is free of discrimination and in which true freedom to believe or not to believe is enjoyed by everyone equally, given that everyone is valued equally.”
Some may wonder what the kerfuffle is about, and assert that, in 2018, it is not unreasonable to expect individuals and organizations to get in line with progressive Canadian values. That may be satisfactory as long as one’s ideological allies continue to form the government of the day. But what happens when a new government articulates a contrary set of “values” that all citizens are required to affirm? Regardless of how one feels about the underlying “values” being advanced, we should all be deeply concerned when State actors insist that private citizens support their philosophical worldview—or any particular worldview, for that matter—as a precondition to equal treatment.
Disqualifying otherwise eligible recipients from a public benefit because of their religious beliefs is, quite simply, wrong. Canada takes pride in being a progressive nation when it comes to protecting and advancing human rights, but our governments are relying on the same excuses the United States Supreme Court dismissed as tired more than fifty years ago: “It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.”
It’s 2018. We can, and must, do better.
Derek Ross is the Executive Director and General Counsel for the Christian Legal Fellowship, Canada’s national association of Christian lawyers. Portions of this article are adapted from earlier versions published by the Ontario Bar Association and the Montreal Gazette. The views expressed are his own.