State neutrality in religious affairs civil servants & religious dress.

• Author: Pelsmakher, Simon

ABSTRACT: This article examines the question of whether civil servants have the right to wear religious dress. The law in Canada, the United States, and Europe will be examined in order to review different policies regarding the relationship between state neutrality and religious affairs, freedom of religion, and equality. A synthesis of these laws will then be proposed in order to argue that civil servants should have the right to wear religious dress, and by doing so, laws pertaining to neutrality are not violated.

TABLE OF CONTENTS I. Introduction II. Canadian Case Study A. Sunday Closing Cases B. Religion in Public Institutions C. Multiculturalism and the Charter D. Quebec Case Study III. U.S. Case Study IV. European Case Study A. Italian Case Study V. Final Synthesis I. INTRODUCTION

Over the past few centuries there has been a growing debate in the Western world about the relationship between state and religion. This issue took center stage in the U.S. founding laws and principles and it is a significant issue in Canada and Western Europe. Whereas the law mandates an official "separation of church and state" in the United States, (1) the law in Canada provides no such guarantee. Canadian jurisprudence favors a so-called "state-neutrality" approach as a means of balancing the interests of competing religious groups while remaining neutral. The jurisprudence in Europe is arguably somewhat contradictory. States such as Italy actively promote secularism, yet conversely uphold the importance of Roman Catholicism in their societies.

In recent years, one aspect of the state-religion debate has focused on the rights of civil servants to wear religious dress while conducting their official public duties. The former Parti Quebecois government attempted to address this issue by proposing the Quebec Charter of Values ("Quebec Charter") in 2013, which would have prohibited civil servants from wearing religious dress. (2) Canadian political leaders heavily criticized the Quebec Charter and it did not become law. Nevertheless, the debate over the use of religious dress by civil servants while on the job continues to unfold in Quebec and the rest of Canada within the greater context of accommodation of religious minorities and the relationship between state and religion.

This article will argue that Canadian civil servants should have the right to wear their respective religious dress at work. A comparative approach will be taken to outline the methods used in Canada, the United States, and Europe, with a particular emphasis on Italy, in order to determine how this issue is tackled around the world. First, there will be a discussion on how the law operates in Canada (excluding Quebec). Sections 2(a), 15, and 27 of the Canadian Charter of Rights and Freedoms (3) ("Charter") will be reviewed. There will also be a discussion of the "Sunday closing cases."

Next, this article will discuss how the law operates in Quebec, and will outline the Outremont secularism and religious-accommodation disputes. The cases of Syndicat Northcrest v. Amselem, (4) and Rosenberg v. Outremont, (5) will be reviewed, as will the Bouchard-Taylor Report. (6) The article will subsequently survey the relevant law in the United States. The Establishment Clause of the First Amendment of the U.S. Constitution (7) will be reviewed in addition to applicable American case law. These cases include Van Orden v. Perry, (8) Everson v. Board of Education, (9) McCreaiy County v. ACLU of Kentucky, (10) and Lemon v. Kurtzman. (11) Finally, this article will briefly review the law in Europe, such as in the European Court of Human Right's decision in Lautsi and Others v. Italy. (12) Following the discussion, a proposal will be introduced which synthesizes the relevant laws surveyed in order to demonstrate why civil servants should have the right to wear religious dress while at work.

2. CANADIAN CASE STUDY

   While Canadian law does not make any specific mention to "separation of church and state," as is the case in the United States under the U.S. Constitution, (13) Canadian jurisprudence does reiterate that government should remain neutral regarding matters of religion. The relevant black-letter law on this issue can be found in ss. 2(a) and 15 of the Charter.

   2 (a) "everyone has the following fundamental freedom: (a) freedom of conscience and religion" (14)

   15(1) "every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability" (15)

   As the following cases demonstrate, the interpretation of these sections of the Charter have been hotly debated and have helped shape the relationship between government and religion.

   1. Sunday Closing Cases

      In the Sunday closing cases of R v. Big M Drug Mart (16) and R v. Edwards Books, (17) the courts ruled that laws of a religious nature that are coercive can be tantamount to a s. 2(a) violation. (18) This is because such rules violate an individual's right to freedom of religion. In Big M Drug Mart, the Supreme Court of Canada ("SCC") ruled that the Lord's Day Act, which prohibited the retail sale of goods on Sundays, was a clear violation of s. 2(a) of the Charter. The SCC came to this position because the law in that case was religious in nature and coercive. (19) Justice Dickson (as he then was) stated that laws such as the Lord's Day Act, which are not secular in nature and whose purpose is the "compulsion of religious observance," offend freedom of religion. (20) He went on to state:

      "It is unnecessary to consider the actual impact of Sunday closing upon religious freedom. Legislation whose purpose is found to violate the Charter cannot be saved even if its effects were found to be inoffensive." (21)

      In contrast to the findings of this case, the SCC in Edwards Books held that similar laws, which create an indirect economic hardship, are not sufficient to demonstrate a Charter violation. (22) The statute in that case, the Retail Business Holidays Act, was of a secular nature. Unlike the Lord's Day Act, the Retail Business Holidays Act merely had an unintended effect on the rights and interests of religious minorities, such as Saturday Sabbath observers. For religious reasons, the businesses of such observers were already closed on Saturdays; due to the Retail Business Holidays Act they also had to close on Sundays. The Court found that such laws do not demonstrate a clear violation of the Charter unjustified by s. I. (23) Moreover, the law in Edwards Books was not religious and coercive in nature. (24) As such, the Retail Business Holidays Act was upheld in Edwards Books. (25)

   2. Religion in Public Institutions

      As discussed in Richard Moon's "Freedom of Conscience and Religion," in the cases of Zylberberg v. Sudbury (26) and Canadian Civil Liberties Association v. Ontario, (27) the courts ruled that laws which require students to read and study Christian religious texts violate s. 2(a) of the Charter and cannot be saved by s. 1. (28) The courts determined that such actions demonstrated state favoritism of a specific religion and were therefore, coercive and discriminatory against non-adherents of said religion. Mouvement laique quebecois v. Saguenay (City) (29) also considered this issue, which will be further explored in the Quebec Case Study section of this article. In Mouvement laique quebecois v. Saguenay (City), the SCC held that the requirement to read specific religious texts in town municipal buildings was a violation of the Charter. (30)

      In Allen v. Renfrew (31) (predating Saguenay), the Ontario Superior Court of Justice also ruled on this issue but came to a different conclusion, holding that requirements to read ecumenical religious texts at the opening of a municipal council session and at meetings is not a s. 2(a) Charter violation. The Court in Allen v. Renfrew reasoned that the religious texts were more of a neutral nature rather than being specific to one particular religion. (32) The Court in Saguenay reviewed the Renfrew decision, holding that the prayer in Renfrew was not religious in substance or observance, nor otherwise coercive and burdensome. The prayer requirement in Saguenay, however, was religious in practice and had a burdensome effect on the complainant. (33)

   3. Multiculturalism and the Charter

      While rarely invoked by the courts, s. 27 of the Charter has been used to protect the multicultural heritage of Canadians. It states: "[t]his Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians." (34) As there have not been many cases specifically focusing on s. 27, the cases that will be discussed in this section will more so outline how the law has adapted to issues pertaining to multiculturalism.

      Section 27 was famously cited in R v. Videoflicks, (35) In that case, the Ontario Court of Appeal held that s. 27 should be used as a mechanism to reinforce freedom of religion. (36) The Court reasoned that if a law restricts an individual's right of religious expression, then the law does not promote multiculturalism, which is an integral part of an individual's identity and culture. (37) Section 27 was also cited by the SCC in Big M Drug Mart, where the Court found...