The actual text of the prayer, which is set out in paragraph 12 of the
courts opinion, is actually quite nonsectarian, addressed to Almighty God
and focused on soliciting guidance for the council. I think the right rule
is no prayers at government meetings with assembled citizens, but no one
could count to five on that in this country, and we would have been
delighted to get the official Saguenay prayer in Town of Greece.
Yet Paul characterizes it as more sectarian than the prayers in Town of
Greece, and not without reason. The mayor, who recited the prayer,
introduced it and ended it with the words in the name of the Father, the
Son, and the Holy Spirit, as he and other members of the council made the
sign of the cross. In one of the two places where the council met, there was
a statue of the Sacred Heart; in the other, a crucifix on the wall. So there
was much about this practice that was explicitly Catholic. These Catholic
devotions were wrapped around an official text of the prayer, enacted as a
town bylaw, that was about as nonsectarian as they come.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Horwitz
Sent: Thursday, April 16, 2015 11:15 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 <mailto:rob...@law.cuny.edu>
Subject: Town of Greece - Canadian Version
Date: Wed, 15 Apr 2015 13:31:34 -0400
To: conlawp...@lists.ucla.edu <mailto: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-o
pening-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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