1. Preface and Summary Court decisions come at a rapid pace and in no logical subject order. Only when they are described together does a pattern emerge; for those interested in judicial decisions that touch on religious belief or practice, and have been concerned about the direction of those decisions, the cases gathered here will provide clear evidence for their concerns. Dr. Ogilvie reviews court decisions that show the regard (and disregard) courts have had for faith. She focuses on the virtual banishment of religion qua religion especially from the public square. A banishment that, quite apart from its injustice, is startling due to the fact that it is out of all measure to the proportion of Canadians who profess religious belief. This paper catalogues some of the more surprising decisions in connection with education, employment, family life, health, the welfare state and intrusion into ecclesiastical affairs. Dr. Ogilvie raises the spectre that, as she puts it, "the gradual eradication of the religious voice from the public square in Canada should not distract us from the fact of that eradication and the threat it poses to liberty generally." A few years ago, an Atlantic Monthly article by Glenn Tinder discussed the question of its title, "Can We Be Good Without God?" Dr. Ogilvie's paper raises a wider question: can our society remain democratic without maintenance of a flourishing religious basis? After all, religious freedom and political freedom evolved hand-in-hand. Can we maintain, for example, respect for persons but avoid an examination of the spiritual and moral ends of both person and state? Those raised within the nominal shell of religious faith were nonetheless imbued with its precepts, however inadequately they were taught to ground them on religious presuppositions. Because the former shell of nominalism has, in large part, vanished, liberal parents look with horror on children who do not accept their taken-for-granted "ought" propositions. But one cannot give what one does not have. When morality is no longer taught for fear of "imposition," the temptation is to rely on retribution. While law and morality have their respective spheres, it is questionable whether law can function properly without morality. Justice must not only be done, it must be seen to be done, and to see it as being done, one must know what justice looks like, that is an essentially moral vision. Dr. Ogilvie notes that "... accommodation has too often metamorphosed into assimilation, so that purportedly Christian communities often minimize and trivialize belief to the point of non-recognition." Neither nominalism nor the reduction of virtues to values can pass on a flourishing form of the faith that gives life and frame to culture. Near the end of her paper, Dr. Ogilvie notes that "the revival of freedom of religion and of the religious voice in public discourse may well be essential to the re-formulation of the liberal state on the basis of genuine pluralism and equality. If we go on as we have recently done, the prospect before us is truly frightening." As with all Centre publications, it is hoped that this paper will prompt reflection and discussion for those concerned with all aspects of public policy formulation in Canada.—Iain T. BensonOvercoming "The Culture of Disbelief" by M.H. Ogilvie In my more pessimistic mental rambles around the topic of the relationship of religion and Canadian society at the close of the twentieth century, I frequently detour to the sack of Rome in 410 A.D. by Alaric the Goth, which caused the severe psychological stress for Christians in the late Roman Empire, so neatly captured by Jerome when he wrote, "If Rome can perish, what can be safe?" (Ep. 123, 16). This cataclysmic event drove Christians across the sea to North Africa and to the diocese of Augustine, Bishop of Hippo, who responded by writing his final book, De civitate dei, over the last fifteen years of his life, completing it just before his death in 430 A.D. Augustine considered it to be his best book, the culmination of his thinking over a 70 year period, on the meaning and purpose of life in this world. Yet, for the most part, De civitate dei is not just a theological treatise, rather it is a vast work of pastoral theology, prompted by a pastor's concern for his flock. Augustine sought to comfort the Christian refugees of his day, by reminding them that while Rome had been a great empire, established for providential purposes, its fall, and the loss of their property, their suffering, deprivation and even death, was no ultimate loss. Rather, their real future and hope should be in things eternal—in the glorious City of God not the transient City of Man. The analogy of the early 5th century with our own day is undoubtedly superficial, yet in a limited way, enlightening. The Roman Empire had been nominally a Christian empire after the conversion of Constantine in 313 A.D. and the adoption of Christianity as the state religion in 324 A.D. The early Christian church was already fractured into numerous competing sects, each boasting that it possessed the universal and exclusive truth. The Empire had been repeatedly overrun by "barbarians", from a variety of races and cultures, bringing their alien ways of life, alien beliefs and alien practices into the heart of the greatest empire the world had yet seen. The ruling elites lived lives of private debauchery and public corruption, enjoyed the rewards of ruling status, but were unable to repair the deterioration of both economic and social infrastructures and the general decline in economic well-being. Violence and crime were rife in the large cities of the Empire, exacerbated by racial, religious and economic rivalries and jealousies. To many the "end of history" seemed to be at hand. And Alaric was a baptized Christian. Against a similar historical backdrop, there is among Christians in Canada a rising tide of apprehension, anger, a sense of betrayal and alarm at the speed with which the formerly Christian fabric of Canadian society has been unraveled within the half generation since 1982 and certainly within the generation since 1968. It may not be politically correct to observe that the sacking of Christian Canada has been largely accomplished by baptized Christians. Yet, the Alarics in our legislatures and on our benches have demonstrated that laws can be as effective as fire and the sword in the destruction of earthly cities, and that persecution and oppression can be equally wrought by psychological as well as physical means. Augustine described the state as a "band of brigands"—an analogy with which many find it easy to identify in Canada today, as they sense that something is terribly wrong in their country, that Canada, like the United States, seems to be careening out of control, while its elites plunder their spiritual inheritance and increasingly deny its expression in everyday life. While it is the Christian community which is primarily under siege from lawmakers in Canada today, by virtue of its greater numbers, it is mistaken to think that Christians are the only target of the self-assumed smart and sophisticated legislators and judges of the past generation. Rather, it is religious faith itself, in all its forms, which is the target—that precious sense imprinted in human kind that there is a deep mystery at the heart of the universe, whose personal knowledge gives the highest meaning and purpose to the otherwise seemingly accidental collection of existential events of ordinary existence. While some members of non-Christian religious groups, recently arrived in Canada, still think that they are striking a blow for freedom of religion against a strong and powerful Christian establishment, by targeting Sunday pause days or public school holidays, the more recent increase in co-operation amongst adherents of both Christian and non-Christian religions in targeting the modern, liberal, secular state, and all its works, suggests growing appreciation of the political power of a common foe. In any case, the speed of the collapse of the Christian edifice and the paucity of dust and rubble left behind in the public square (although not necessarily on the private hearth) suggests it to have been a cardboard facade, a movie set, long ago gutted, and requiring only a whisper to topple. As psychologically satisfying as it may be, to open for Sunday shopping or wear a kirpan to school, the fact remains that the gutting of the Christian public square has been largely the work of nominal Christians over the past few generations, who have suffered profound doubt, loss of self-confidence and nerve, in the face of secular modernism. When judges can blandly assert (as did the Ontario C.A. in Peel,1 in 1991) that Christmas and Good Friday are mere commercial holidays devoid of religious significance, and sustainable as such, as holidays, the Christian game in the public square is clearly up. Assaulted for over a century by science, socialism, affluence and the ridicule of the intelligentsia, many Christians have retreated to self-doubt, self-loathing, loss of faith, apology and compromise—frequently finding temporary relief in accommodation with apparently compatible secular ideologies, such as the social gospel with the welfare state. But accommodation has too often metamorphosed into assimilation, so that purportedly Christian communities often minimize and trivialize belief to the point of non-recognition. Yet, some signs that the corner has been turned and assimilation has been identified as faith-destroying, are now evident, as the Christian community realizes that not only ought it not to be regarded as the real target but rather that in harmony with Moslems, Sikhs, Buddhists and Jews should turn to face the true enemy of all people of faith, the secular, socialist state in Canada and its institutional fellow travelers. It is the state and its instruments, the legislatures, the courts, the social welfare agencies, the schools and universities, which have neutered, trivialized, ridiculed and banned from public discourse the practice and expression of faith in the public square. This banishment of religion qua religion from the public square in Western societies may well constitute a turning point in the evolution of the liberal, democratic state from freedom to a totalitarianism which threatens not only faithful citizens but all citizens who wish to pursue their personal visions for their lives in liberty and to participate in public discourse on any topic in the language they naturally use. The alarming acceleration in the silencing of voices deemed to be politically incorrect—and there can be no more politically incorrect voice than the voice of faith in the public square—suggests that the movement from democracy to totalitarianism is further advanced than might be wished. Let us consider what our legislatures and courts have done in recent years to bring us to this not so pretty pass. Examples of attempts to eradicate religion from the significant experiences, events and relationships of life abound.1. Education: All religious faiths share a common future: their children. Therefore, it is hardly surprising that the school classroom is the most shell-pocked battleground for religious disputes whether between faiths or between church and state. It is salutary to recall that state-financed public education systems are a recent feature of Western societies and that for our great grandparents, the church-run school and university was the social and educational norm. However, with the advent of state schooling, the requirement of the state that children attend school at least until age sixteen, because this is thought to be in the future best interests of society, means that the battle for the classroom is permanently joined. Since education is funded by parents and other taxpayers, it might be expected that the educational establishments and courts would pay some attention to their concerns generally, and in particular to the concerns of religious parents, in the education of their children. So, what of it? Religious exercises (even faith-based through the temporary separation of children)—banned by the Ontario Court of Appeal in 1988 (Zylberberg).2 Religious instruction (even faith-based through the temporary separation of children)—banned by the Ontario Court of Appeal in 1989/91 (Essex County Case).3 Funding for religious schools on a Charter s. 15(1) equality basis with Roman Catholic schools—denied on the grounds that this would be destructive to the public schools and that Roman Catholic school funding is an irrelevant historical anomaly whose constitutional entrenchment puts it beyond further re-examination for all eternity—the Supreme Court of Canada in 1986 (Education Act Case)4 and the Ontario Court of Appeal in 1994 (Adler).5 And, as for home-schooling by religious parents, the Supreme Court of Canada has said that when provincial legislation requires provincial certification, a failure to invite state approval is not protected by s. 2(a) of the Charter but is a reason to prohibit homeschooling as a reasonable limit demonstrably justifiable in a free and democratic society pursuant to s. 1 of the Charter (Jones, 1985)6. And as for the universities? Well, while "academic freedom" (whatever that means) has probably precluded judicial supervision of university life to date, it is well-known that the culture of contemporary Canadian universities is such that academic freedom may only protect the attempted indoctrination of students in Marxism, radical feminism and the other current obsessions of an intellectually and morally decadent intelligentsia. Become known as a religious person on campus, whether student or professor, and you will be professionally sidelined, publicly ridiculed (with no speech code protection) and suspected of or be openly accused of being unfit to hold a university appointment. History, politics, philosophy, literature, must now be taught with religion left out. And, of course, those modern subjects, such as sociology, psychology, criminology, have been largely antithetical to religion from their respective outsets. In short, with the exception of the state-financed schools of those constitutionally privileged Roman Catholics, our public educational system is a spiritual wasteland, devastated by the courts and the educational establishment. But, in recent years, more sinister still, the schoolroom has become a centre for attack upon religious belief and the moral values instilled through belief. Faith—all faiths—are treated like life-style choices, all equally valid and invalid, like homosexuality. Thus, children are placed in a situation of confusion where the lessons in the classroom contradict the moral directions given by devout parents of all faiths, a situation with the potential to undermine permanently the relationship of parent and child. The eradication of religion from the public school classroom has been virtually achieved. The assault upon the nurturing of religious faith by home and church in the growing child has begun.2. Employment: There have been three major points of confrontation between the religiously devout and their employers over the past decade or so: absence from the workplace on holy days; wearing religious dress or religious symbols on the job; and, attempts to control the private lives of employees. While the education cases show the consistent application of the principle that religion be banned from the classroom, a somewhat different pattern seems to run through the employment cases, that is, the courts have generally accommodated religious practice on the job with one exception. Where the challenges have been made by members of minority, often recently arrived groups, the courts have always acceded to their requests, but where the issue has been an employer requirement of a religious practice for mainstream Protestant employees, the judicial decision has almost always gone against the enforcement of that requirement. Thus, both courts and human rights tribunals have required employers to accommodate to the point of hardship the holy days of Seventh Day Adventism, the Worldwide Church of God, Judaism, and of one solitary member of the Free Church of Scotland, residing in Ontario (O'Malley;7 Christie;8 Renaud;9 Gohm;10 Rand;11 Janssen12). Sikhs have been permitted to wear turbans when safety helmets might have been thought advisable (with potential social costs to all taxpayers in the event of accidents) (Bhinder13) and kirpans where a weapon-free environment might seem safer, in schools and hospitals—but not in the courts (Singh14). But where an evangelical Christian school or nursing home have sought to ensure that their employees practice Christian moral precepts in their private lives and accordingly have dismissed employees living common law or who have had children out of wedlock, their reinstatement has been ordered on the ground that Christian lives are not a bona fide occupational requirement for employment in Christian institutions, unless this is made an express written condition of employment. (Garrod15; Parks16; Lothian17). By contrast, the courts have consistently upheld the constitutional right of Roman Catholic schools to dismiss teachers who have married outside the church, indeed in all the reported cases to believing and practising Protestants, as within the ambit of the s. 93 entrenched rights of these schools. (Caldwell18; Stack19; Casagrande20; NTA21). Thus, dismissal for "denominational cause" is permitted to Roman Catholic school boards because it is thought to be constitutionally mandated, but denied to other Christian institutions. Thus, the accommodation of some religious practices is permitted but others may not be insisted upon even within a religious institution. No devout person of any faith can be critical of the decisions relating to holy days or wearing religious symbols on the job. Members of all faiths would hope to receive similar treatment. Wearing crosses or crucifixes is, after all, offensive to many Christians, yet these practices have never been illegal. However, the denial of a right to privately-funded Protestant organizations to require a Christian life of their employees is deeply troubling. Is this reverse discrimination against Protestants? Are the courts trashing some imagined Protestant establishment or engaging in self-hatred? Or, is the unspoken trajectory uniting both education and employment cases, an equally unspoken judicial assault upon Protestantism in Canada? The proper interpretation of these cases is fraught with ambiguity.3. Family Life: Religion and the law intersect in two areas of family life today: custody in divorce proceedings and health care decisions for minors. At one time, the law regulated virtually all aspects of family life, primarily through the Criminal Code, so as to enforce Christian moral and sexual teaching in relation both to family and other personal relationships. Most of this legislation has been repealed, leaving citizens free to make their own choices in such matters. Nevertheless, courts do continue to intervene, particularly when decisions involving children must be made. Thus, in making custody and access orders, courts give instructions in relation to the religious upbringing of the children—whether they may be taken to religious services, participate in other religious activities (proselytizing), or be given religious instruction in the homes. The overriding principle in making such orders is the best interests of the child, as determined by the court.22 While I strongly believe that family court judges try to do their absolute best in making such orders, it should be recalled that most faiths regard parents, alone, as having authority over their children, so that the potential for conflict is ever present when the state purports to exercise its authority over children in a fashion conflicting with parental views. Courts have also recently removed decisions about the health care of children from their parents in matters of life and death when religious issues have to be weighed, in particular, in relation to those cases in which Jehovah's Witnesses' children requiring blood transfusions are placed in protection for the duration of the treatment and then are returned to their parents after the course of treatment has ended. The religious views of the parents have been entirely overridden and deemed irrelevant to a decision based on the secular, modern preference for life at all costs, even (for religious people) at the cost of eternal life.234. Health: While the courts and the legislature have generally left adults with the freedom to determine their own health care on the basis of their religious or other beliefs, protecting these decisions through the common law doctrines of informed consent and the torts of assault and battery, the beginning and the end of life have come to be matters of debate in the public square, with strangers attempting to shape laws within which those whom they do not know will have their fates determined. Presumably, the reason that birth and death have come to be contentious matters is that at each point in life, a person is not able to make informed choices for herself, and the issues are of who shall make those choices and what criteria shall be used to make those choices. Matters of life and death have become public property today as society appears to abound in persons willing to make decisions on behalf of the unborn fetus and the unconscious dying person. Since the de-criminalization of abortion by the Supreme Court of Canada in Morgentaler24 in 1988, theoretically, women are legally free to have abortions. Those whose religious views prohibit abortion need not undergo the procedure. But should those whose religious views prohibit abortion as murder expect to use the public law to force those who do not share their views to forgo the procedure? Would they wish to have the views of others in other medical issues forced upon them? Who should make the decision—the party or parties most closely concerned or society generally, or at least that part of society which makes our laws? Paradoxically, a religious view which regards parents as having Godgiven authority over their children to the exclusion of all others is compatible with the view that the decision over the future of the fetus belongs to its parents; who must also, of course, take responsibility for their decision to all eternity. That abortion is no longer regarded as a moral decision founded in religious beliefs about the sanctity of divinely created life is evident in two features of the public debate over the past decade or so. First, the public abortion debate has been transformed from being about the right to life and/or murder of an unborn fetus into a women's equality issue. Morgentaler exemplified and blessed this transformation, as the Supreme Court adopted the construction of the issue advocated by radical feminism, as solely a women's issue. As a result, secondly, public funding for abortion through the tax system means that religious people opposed to abortion on religious grounds or those who are opposed to it on other moral grounds are nevertheless obligated to support it indirectly. Thus, abortion funding has come to represent the fundamental moral dilemma which the welfare state poses for people of all faiths, insofar as political elites have created legal entitlements funded by reluctant taxpayers to state-financed services unreflective of the moral views of substantial numbers of taxpayers. Death could be defined as the ultimate equality issue since it is the fate we are all born equally to face. The recent public debate as to how the public law should be drafted to impose public solutions on decisions that touch on matters of faith, suggests once more that decisions about life and death, in relation to which most religions speak, are being removed from their original theological context to be tossed around on the sea of public opinion, as shaped frequently by non-religious people. Whether the issue is the legal status of living wills requesting "no heroic measures"; self-inflicted suicide; assisted suicide; or active euthanasia, most religious people would prefer to make their own decision informed by their own theological views both for themselves and for their immediate relatives, rather than in the light of state-imposed views not necessarily similar to their own.5. The Welfare State: Underlying the foregoing issues is, of course, the general problem which an homogenous welfare state poses in a religiously and culturally plural society. At one time, when western societies were more homogenous than they are now, it seemed a good idea to ensure that minimum standards of living were accorded to those members of society who could not gain such for themselves and that the state was the most appropriate vehicle for that wealth transfer. Now, we are no longer sure about much that is done in the name of social justice, especially when affirmative action programs increasingly appear to bestow special legal and economic privileges on sections of or groups in society whose privileges are founded on claims repugnant morally to the faithful of many religions. In earlier, less complex societies in which families and communities of faith cared for one another in sickness and in health, and in which governments were small and far away, the separation of church and state could be more easily accommodated, although ironically, was hardly necessary in light of the cultural and religious homogeneity of those societies. But the modern, welfare state with its complex social welfare system and universal taxation base makes it difficult for religious people to devote the fruits of their labours to social projects congruent with their religious beliefs. Indeed, when such a political system is dominated by elites who would silence contrary voices, religious or not, the tension created for religious people who are under a duty of good stewardship of their earthly possessions is very great indeed. As individual taxpayers have learned when they have withheld taxes in relation to government expenditures on defence (Prior25) or for abortion funding (O'Sullivan26), the courts are unsympathetic, characterizing the dilemma as either a chimera in the mind of a just quite possibly unbalanced litigant or as a trivial infringement of freedom of belief and as such permissible in a free and democratic society. Of course, chaos would result if it were otherwise—it would be impossible to tailor tax regimes for every individual taxpayer and to re-jig them periodically to reflect that taxpayer's changing views in life. It is, therefore, hardly surprising that the solution increasingly advocated by religious people is to reduce the size of the state and the number of entitlements to the minimum required for economic progress: real classroom education, basic health care and law and order. Let all citizens, including citizens of faith, be free to dedicate their money to the private entitlement systems which accord with their beliefs, once the basics for a civilized society have been provided universally.6. Intrusion into Domestic Church Affairs: Courts, and occasionally legislatures, have always in our constitutional system, founded on Parliamentary sovereignty, had jurisdiction to regulate the internal domestic affairs of religious institutions. In the past, diffidence and reluctance to interfere was the normal response, although there are certainly cases of intervention when a court thought that to be the appropriate response. Recently, intervention has become more frequent, indeed approaching the norm, and courts no longer begin their decisions with those embarrassed apologies at having to interfere, once ritually expressed by reluctant judges prior to rendering judgment. Admittedly, judicial intervention has been good at times, such as in the recent spate of cases requiring the United Church of Canada to employ fair procedures in its church courts—an injunction equally applicable to other denominations as well (Lindenberger27; McCaw28; Davis29; Lakeside30). On the other hand, once the practice of intervention in domestic matters becomes ingrained in the judicial attitude to religious institutions, one must fear for a future in which the issue is not procedure, but substantive theology, and in which theological issues are transformed into equality issues, such as the ordination of practising homosexuals or of women, in those churches theologically opposed to such. There is no current reason for optimism that theology will be accorded precedence to "equality", when such issues come before our secularized courts, as the transformation of the abortion issue predicts. How might we summarize these developments since 1982? Essentially, religion has been excised from the schools and universities and from those family arrangements which are still obliged to come into contact with the law. Other issues, which were once regarded as governed by divine revelation, as found in holy books, have been re-categorized in public discourse as equality issues, in which the dominant voices in the public square are those whose views contravene divine revelation, and who may also have, according to opinion polls, tiny support bases within the general population. While the courts increasingly intervene in the domestic affairs of religious organizations, whether by dictating the life styles permitted to their employees or by re-instating dismissed clergy. Under the rubric of freedom of religion, as a society we have moved quickly toward freedom from religion. The modern, overarching welfare state has proven itself to be as much as enemy of religious autonomy as it is of economic, political, social and individual moral autonomy. It is possible to be even more specific and to suggest five general underlying themes and trends in these legal developments in Canada. First, most of the cases inviting confrontation between church and state in Canada have been initiated by members of recently arrived minority religious groups, who think that they are engaged in a great work, wresting freedom and liberation from a strong Christian state. Nothing could be further from the truth. They are tilting to windmills. The left liberal judiciary happily accommodates them because as secular moderns, they no longer care. Thus, the social task of thinking through how to make religious pluralism work has fallen into the laps of the religiously cynical—an unpleasant prospect for all. Secondly, the accommodation of non-Christian religious groups has been largely at the expense of the historic religious minorities in Canada—Anglicans, Baptists, Lutherans, Mennonites, Presbyterians. The religious censuses since Confederation show that the largest religious group in Canada has always been the Roman Catholic church and since the 1951 Census, it has also been just about the majority, hovering about 50% of the population. The historical Protestant denominations have always been, individually, minority religions in Canada in contrast to the Roman Catholic church and have never enjoyed the constitutional entrenchment of powers enjoyed by that church pursuant to s. 93, other than for a period of about 60 years in Quebec before the provincial government watered down the funding guarantees for Protestant denominational schools. Thirdly, while the purpose of recent litigation had been to achieve accommodation within Canadian society, the effect of the litigation has been the removal, generally, of religion from public life and public institutions. Of course, this may well be the only workable solution in the classroom or in the Criminal Code, but an unwanted outcome has also been the marginalization and, therefore, trivialization of religion as a significant factor in both public and private lives. Fourthly, the trivialization and marginalization of religious perspectives has been facilitated and legalized by the legislatures and especially the courts, which have been manned for most of the past generation by secularized judges and legislators, who do not even bother, in contrast to their American equivalents, to pay public lip-service to religious concerns. The assault on "Christian Canada" mounted by recently arrived religious groups has meshed quite nicely with the political and social agendas of the political elite. Fifthly, the net result has been the transformation of many public issues from moral or theological issues rooted in divine revelation as God's purpose for his creation into secular issues, framed as equality issues by predominantly anti-religious special interest groups and their liberal supporters, in a way which frequently perverts and disguises their origins in religious morality. The reason for the political success of this transformation is clear—who can be opposed to equality? Thus, even religious people are reluctantly co-opted into the secular goals of our secular society. Contemporary society requires some schizophrenia of the devout of all faiths as they accommodate often conflicting public and private agendas. Some release from this tension might be got by adopting a live and let live attitude; however, momentary recall that, as a taxpayer, the devout person in a welfare state is still required to finance conduct regarded as morally wrong, because it is a contravention of God's laws, quickly deflates that easy option. Not surprisingly, public debate, once inconceivable, about dismantlement of both public social nets and private employment benefit plans is beginning, not simply because the money may no longer be there but, more importantly, because the public will may no longer be there either. From the perspective of a religious person, the dismantlement in substantial part of the excessive state entitlement schemes might allow for the recovery of what the homogenous welfare state has obscured, individual identity as a religious person within a community of faith, leading a life of integrity rather than alienation. One of the great gifts of all religious groups in Canada, brought by recent immigrants from other religious traditions, is the remembrance of and models for the recovery of integrity and coherence as communities of faith. Additionally, these groups have further demonstrated how important to community integrity and identity is the willingness to speak in the public square in a religious voice. That is, to assert in the teeth of secular politics and its marginalization of religious perspectives that communities of faith can be autonomous and independent centres of authority and meaning with as justifiable a claim, even measured against liberal criteria, to be protected and heard as such in public discourse as the claims of other special interest groups today. The assimilation of indigenous 20th-century Protestantism in Canada with secular modernism stands reproved in contrast. The idea that religious groups usefully serve as autonomous centres of authority in the modern state is not new. In his clairvoyant book, Democracy in America, published in 1848, Baron Alexis de Tocqueville commented on the role religious groups could play vis à vis the modern state, as a bulwark against state tyranny for the ordinary person and as an independent moral voice. Recently, Professor Stephen Carter of Yale Law School has re-worked this theme in The Culture of Disbelief, published in 1993. The observation is equally applicable in Canada today. To raise successfully, the religious voice in the public square today, many biases, characteristic of "the culture of disbelief" must be overcome. Professor Carter identifies some:the myth that religious people are in some pre-Enlightenment sense, irrational or abnormal—a view very popular amongst psychologists;the notion that "God" should be a private hobby—indeed, perhaps the last private hobby to be indulged in the dark and behind closed doors;the myth that faith necessarily leads to political sedition;the public willingness to hear the religious voice in support of liberal political causes but to denounce the religious voice when it speaks in support of politically incorrect causes;the assumption that because the origins and inspiration for the religious voice are inaccessible to the post-Enlightenment scientific mind, because found in divine revelation, that the religious voice is therefore irrelevant;the liberal assumption that only economic entitlements and political rights are important to people today, so that only these may be discussed in public;the myth that because the faith claims of every faith are both exclusive and universal, therefore, faiths can never live side-by-side or engage in interfaith dialogue;the assertion that when religious people speak as such in the public square, they are arrogantly trying to impose their beliefs on others, but that when those others speak, they are modestly offering some ideas for public consideration;the myth that when religious language is used in public discourse, it is always, as it so often seems to be in America, phony, and an attempt to impose some kind of "civil religion" on Canada, which is vaguely "Protestant" but largely vacuous and platitudinous.Recent liberal political theorists (John Rawls, Bruce Ackerman, Kent Greenwalt) have argued that when religious people wish to participate in public debate, they should do so in secular language, providing secular justifications for the positions urged, although their origins may be religious. Such theorists believe that there exist certain moral premises shared by all persons and that public debate can proceed on the basis of these premises. Thus, all participants in the debate should shed their backgrounds, and just perhaps, their true selves, in order to participate. On the other hand, Professor Carter has argued that every person should be free to speak with his or her own voice in the public square—whether that voice is religious or not. I agree. Every person should be permitted to be themselves in public discourse as much as in private discourse. And there may well not be any fundamental shared moral premises at all. This requires a psychological re-adjustment to be made in the way in which we think about religious and other groups, from a position of mere toleration or accommodation to a position of real equality of voice—a level playing field. This means a collective rejection of our current way of thinking about religions in Canadian society as one where there is a single majority and a variety of minorities. With the possible exception of the Roman Catholic church, which has never got over that 50% hump in the census statistics, we are all minorities. A glance at the 1991 Census shows that there are 84 different religious minorities recorded, as well as about 4 million unbelievers. We are a nation of religious minorities. "Toleration" is, therefore, an inappropriate concept since it requires not only the existence of a majority, but also implies on the part of that majority, forbearance, absence of respect, non-approval and an implicit hope of conversion in relation to the "tolerated" minorities. Toleration is a power word. In any case, Toleration is not even a religious virtue, since all faiths worth their salt profess exclusive and universal access to truth, while toleration imports lukewarmness and even absence of real belief. Rather, instead of thinking about religions in terms of toleration or accommodation, perhaps it is time to jump into a new psychological attitude and language which respects the exclusive and universal claims of each religion without public criticism, that is, a language acknowledging an equality of voices, including religious voices in public discourse. In any case, religions are showing no signs of melting away along with capitalism as Marx had expected, so as a society we might as well get used to its many voices, as well as the remarkable number of times, many faiths can speak with one voice on public issues. The accommodation of religious equality within the public square is more easily accomplished within the American constitution than our own. The First Amendment that, "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof", was originally designed to protect religion from the state, rather than the state from religion. Today, it is widely interpreted to ensure absolute state neutrality in its dealing with religious groups, which therefore enjoy complete equality before the law. The First Amendment constitutes a voluntary surrender by the state of control over religion. How differently we have arranged things in Canada. Our Charter (s.2(a)) guarantees freedom of conscience and religion as a fundamental freedom, but only if demonstrably justifiable in a free and democratic society (s.1), as decided by the judiciary. It also entrenches privileges for denominational schools (s. 93 & s. 29) by way of state funding. Rather than voluntarily surrendering control over religion, the Canadian constitution grants the regulation of religion to the courts, which since 1982, have ritually commented not only that freedom of religion is far from absolute in Canada, rather is a relative matter which may be infringed upon in favour of some more pressing policy, but also that equality of treatment for religions is not mandated by the Constitution and that again, it is constitutionally permissible to treat religions unequally in this country. The First Amendment sustains and nurtures a political environment in America where religions can be autonomous centres of moral authority; the Charter subjects them to the power of the state in Canada. History presents many examples of the fact that one of the earliest actions of totalitarian states, once they are fully established, is the abolition by law of religious freedom and the bringing of religious institutions into the strangling grip of some department of state. Independent centres of authority to the state are unwelcome, and religious centres, drawing as they do on the deepest and most meaningful experiences and resources available to humankind are rightly seen as the most subversive force in totalitarian societies. The gradual eradication of the religious voice from the public square in Canada should not distract us from the fact of that eradication and the threat it poses to liberty generally. Yet, historically, there was no force more intimately related to the evolution of modern parliamentary democracy than religion. Those who still remember the history of that development—with the religion left in—will recall that religion and religious concerns, were the key issues at every step along the way of constitutional development. Religious freedom and political freedom evolved hand-in-hand. Freedom of religion is important not only to those who wish to be religious in late twentieth century Canada, but it is also essential as the touchstone for political freedom and the survival of the truly liberal state—not the socialist state in liberal disguise as we sometimes appear now to have in Canada. The revival of freedom of religion and of the religious voice in public discourse may well be essential to the re-formulation of the liberal state on the basis of genuine pluralism and equality. If we go on as we have recently done, the prospect before us is truly frightening. An hour or so ago we began with the Christian refugees from Rome and the pastoral response to them shown by the greatest father of the church, Augustine. Perhaps we might end with another group of religious refugees and another theologian for refugees who was a refugee himself. I hope you will indulge me while I practice what I have just preached, by relying on a leading theologian of my own faith community: John Calvin. Calvin, was with many other French Protestants, forced to flee the religious persecution of Protestants which marked the failure of the Reformation in France. He finally settled in Geneva along with so many of his fellow countrymen that the population of the town quadrupled in size in the space of a few years. Writing toward the end of his life in the final 1559 edition of the Institutes of the Christian Religion (IV.20.2). Calvin described the proper role for civil states in relation to religion thus: Civil government has as its appointed end, so long as we live among men, to cherish and protect the outward worship of God, to defend . . . the position of the church, to adjust our life to the society of men, to form our social behavior to civil righteousness, to reconcile us with one another, and to promote general peace and tranquillity . . . If it is God's will that we go as pilgrims upon the earth while we aspire to the true fatherland, and if the pilgrimage requires such help, those who take these from man deprive him of his very humanity.Let us hope that the peoples of all faiths in Canada join hands to take back our common humanity from those who would deprive us of it.Notes 1 Re: Regional Municipality of Peel, etc. (1991) 78 D.L.R. (4th) 33 (Ont. C.A.).2 Zylberberg v. Sudbury Board of Education (1988) 52 D.L.R. (4th) 577 (Ont. C.A.).3 Canadian Civil Liberties Assn. v. Ontario (Minister of Education) (1990) 65 D.L.R. (4th) 1 (Ont. CA.).4 Reference re: Bill 30 (1987) 1 S.C.R. 1148.5 Re: Adler and The Queen (1994) 19 O.R. (ed) 1 (Ont. C.A.).6 Jones v. The Queen (1986) 31 D.L.R. (4th) 569 (S.C.C.).7 Re: O.H.R.C. and Simpsons Sears Ltd. (1985) 23 D.L.R. (4th) 321 (S.C.C.).8 Alta. H.R.C. v. Central Alta. Dairy Pool, etc. (1990) 72 D.L.R. (4th) 417 (S. C.C.).9 Central Okanagan etc. v. Renaud etc. (1992) 95 D.L.R. (4th) 577 (S.C.C.).10 Gohm v. Domtar Inc. (1992) 89 D.L.R. (4th ) 305 (Ont. Div. Ct.)11 Rand v. Sealy etc. (1982) 3 C.H.R.R. D/938 (Ont. Bd. Of Inq.).12 Janssen v. Ontario Milk Marketing Board (1990) 13 C.H.R.R. D/397 (Ont. Bd. Of Inq.).13 Binder v. C.N.R. (1985) 23 D.L.R. (4th) 481 (S. C.C.).14 O.H.R.C. and Pandori v. Peel (1991) 80 D.L.R. (4th) 475 (Ont. Div. Ct.) and Singh v. W.C.B. Hospital, etc. (1981) 2 C.H.R.R. D/459 (Ont. Bd. Of Inq.).15 Garrod v. Rehema Christian School (1991) 92 C.L.L.C. 17,003 (Cdn. H.R.T.).16 Parks v. Christian Horizons (1991) 92 C.L.L.C. 17,008 (Cdn. H.R.T.).17 Lothian v. Catholic C.A.S. (Toronto) (1986) 8 C.H.R.R. D/3969 (Ont. Bd. Of Inq.).18 Re: Caldwell and Stuart (1984) 15 D.L.R. (4th) l (S.C.C.).19 Stack v. St. John's R.C. School Board (1979) 99 D.L.R. (3d) 278 (Nfld. T.D.).20 Casagrande v. Hinton R.C. Separate School District No. 155 (1987) 38 D.L.R. (4th) 382 (Alta. Q.B.).21 Re: Nfd. Teachers' Association etc. (1988) 53 D.L.R. (4th) 161 (Nfld. C.A.).22 Young v. Young (1993) 4 S.C.R. 3 and P.(O) and S.(C) (1993) 4 S.C.R. 14.23 See "Editorial Note" at the end of main text.24 R. v. Morgentaler (1988) 1 S. C. R. 30 (See "Editorial Note" at end of main text).25 Prior v. R. (1989) 89 D.T.C. 5503 (S.C.C.).26 O'Sullivan v. M.N.R. (1992) 84 D.L.R. (4th) 124 (F.C.T.D.).27 Lindenberger v. U.C.C. (1987) 20 O.A.C. 381 (C.A.).28 McCaw v. U.C.C. (1991) 82 D.L.R. (4th) 289 (Ont. C.A.).29 Davis v. U.C.C. (1992) 8 O.R. (3d) 75 (Gen. Div.).30 Lakeside Colony v. Hofer (1992) 97 D.L.R. (4th) 17 (S.C.C.).