Interesting that the Canadian Court was so dismissive of the preamble. As I recall in Australia, the reason the Australian Constitution has a free exercise clause and establishment clause although it does not have a Bill of Rights is that people were sufficiently worried about the reference to G-d in the preamble to their Constitution and the risk that it might be interpreted to empower government to involve itself with, or regulate about, religion that they added a provision to counter any such implication. It's been quite a while since I looked at this history, but I think I'm remembering it correctly.
Alan Brownstein ________________________________ From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> on behalf of Paul Horwitz <phorw...@hotmail.com> Sent: Thursday, April 16, 2015 8:14 AM To: Law & Religion issues for Law Academics Subject: FW: Town of Greece - Canadian Version Ruthann Robson of CUNY has, on the con law listserv, offered a post linking to the issuance of a judgment by the Supreme Court of Canada in the case of Mouvement laique quebcois v. Saguenay (City). [I apologize for not properly accenting it; I am reminded of page 104 of Rick Atkinson's masterful book An Army at Dawn.] As she notes, the case has parallels to Town of Greece v. Galloway, inasmuch as the Supreme Court dealt with religious opening practices by a city municipal council; unlike the American Court's decision, however, the Canadian Court ruled, essentially on Charter grounds, that such practices were impermissible. There are factual differences between the cases. The practices in Saguenay were arguably much more sectarian than most if not all of the prayers in Town of Greece, they were delivered by the mayor and not an invited guest, and they represented one faith only; there was not even a bare minimum of rotation among other faiths. I think it unlikely, however, that the ruling would have differed if the facts had been closer to those in Galloway. The decision was unanimous as to the result although there were differences on the ad law/standard of review aspects of the case. Three interesting facts here. First, as the case notes, the Speaker of the House of Commons in Parliament delivers opening prayers before sessions, and the prayer said in this case was drawn from that language. The Court declined to draw any conclusions on that basis about the municipal practice, and noted in passing that the prayer practice in Parliament might be subject to parliamentary privilege. (Although I wonder whether that sufficiently answers questions about the constitutionality of that practice.) Second and to my mind more interesting, the preamble to the Canadian Charter of Rights and Freedoms contains this language: "Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law..." The Court refused to allow that fact to alter its judgment on the Charter question, stating that the preamble "articulates the 'political theory' on which the Charter's protections are based" and was not determinative on the question of how to interpret the Charter itself, whose religion and conscience guarantees must be interpreted expansively. Although I think the Court's judgment was right, it was nonetheless interesting to see this kind of move, which both contrasts with those here who would interpret the Constitution and Bill of Rights in light of both the preamble to the Constitution and, for that matter, the Declaration of Independence; the Canadian Court's dismissive approach to the preamble and its importance to Charter interpretation is kind of like Heller-apres-la-lettre. More generally, I doubt that the differences in result between the two cases had much to do with constitutional text or legal reasoning as such. The Court's reasoning in Saguenay, whether wrong or right, is rather airy, depends on abstract terms that must be filled in and do little strong work in and of themselves, and ultimately, as the Court itself says, has much more to do with its sense of what is demanded by its sense of what the Charter should be taken to mean given its sense of "the evolution of Canadian society." The Court's sense is probably right, although Canadian government, including the Court, is something of a mandarinate and there are reasons to be skeptical about its conclusions about the state and the views of "Canadian society." In any event, my general and longstanding impression is that the differences between the two courts and their respective interpretation of Constitution and Charter have much less to do with text and method than with differences in social and cultural mores and consensus--although the (seeming) presence of a more solid and less divided social consensus has much to do with the method the Court applies, and its ability to rely on rather open-ended balancing rather than highly technical, mechanical, and narrow methods of Charter interpretation. The same cultural and institutional differences are apparent in the courts' respective approaches to statutory interpretation as well, I think. Meanwhile, as a friend and terrific church-state scholar at McGill Law School, Victor Muniz-Fraticelli, observes, many of the religion cases reaching the Court come from Quebec (and, I would add, British Columbia, which along with other western provinces contains some more conservative and religious communities). These are precisely those places in which the Canadian social consensus described, represented, and relied upon by the Court--correctly enough, I think, but perhaps without sufficient awareness of views and communities (more Western than Quebecois) who for decades have been represented within the mandarinate poorly if at all--breaks down. Finally, note that the Supreme Court of Canada also recently issued a judgment in a case called Loyola High School v. Quebec (Attorney General): http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14703/index.do. That judgment has some very interesting discussions that exhibit some overlap with the issues and outcomes in recent American cases like Hosanna-Tabor and Hobby Lobby, including some very interesting language about religion's collective aspects. Those who are interested in issues of religious institutionalism, group religious freedom, and so on, whatever their views on those questions, definitely need to add this opinion to their reading lists. Ruthann's post, with a link to the decision in Saguenay, is below. Best wishes to all, Paul Horwitz Gordon Rosen Professor of Law University of Alabama School of Law ________________________________ From: rob...@law.cuny.edu Subject: Town of Greece - Canadian Version Date: Wed, 15 Apr 2015 13:31:34 -0400 To: conlawp...@lists.ucla.edu Those teaching Town of Greece v. Galloway (or writing about it), might be interested in a "Canadian version" decided by the Supreme Court of Canada today, Mouvement laïque québécois v. Saguenay (City): http://lawprofessors.typepad.com/conlaw/2015/04/canada-supreme-court-finds-opening-prayer-at-town-meeting-unconstitutional.html Post has link to opinion and discussion. While the facts are a bit different and there is also a procedural issue, the SCC judgment in Saguenay does offer an interesting comparison to Town of Greece. The appellate court found the prayer and practices acceptable, the SCC disagreed.
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