State Neutrality and Freedom of Conscience and Religion

Abstract

We are still in the early stages of working out what it means for the Canadian state to be both officially secular and supportive of religious pluralism. In this period of uneasy transition, the respective roles of secular and religious norms in shaping public policy are matters of considerable political debate and scholarly attention. The Supreme Court has had a few opportunities to contribute to these debates in recent years. The author discusses three significant 2004 rulings on religious freedoms: Syndicate Northcrest v. Amselem, the Same-Sex Marriage Reference and Congregation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village). While the majority in Lafontaine avoided the religious freedom issue, Lebel J.'s dissent introduced the language of religious neutrality into the Court's jurisprudence and his thoughtful discussion of its implications ought to contribute to future debates. The Court's opinion in the Same-Sex Marriage Reference was commendable by so clearly stating that religious freedom is in no way threatened by the federal government's Proposed Act (Bill C-38 in Parliament). The move from a definition of civil marriage rooted in Christendom to one aimed at fulfilling the secular ideals of the Charter is consistent with the state's duty of religious neutrality, and the Court's opinion played a valuable role in removing any legal objections to its attainment. Justice Iacobucci's opinion for the majority in Amselem is the Court's most ambitious contribution to the jurisprudence on freedom of religion since the Big M ruling. His emphasis on personal choice may pave the way for the development of a broad conception of freedom of conscience in the future.