Secularism in court

Two court cases coming out of Alberta and one that reached the Supreme Court of the USA brought the legal aspects of secularism into focus this past week.

Secularism, to the BCHA, is “the right of every individual to practice any religion or none, free from coercion by the government, private institutions or their community.” It also includes a recognition “that the state has a duty of religious neutrality, meaning it must neither endorse nor prohibit any belief or non-belief.”

Webber Academy

Two students had filed a human rights complaint against a private Calgary high school. The students were Muslim and asked for somewhere to pray on school grounds at their required times during the day. The school denied their request and the students resorted to leaving school grounds or praying outside in the snow during Calgary winters. The Alberta Human Rights Tribunal and Court of Queen’s Bench sided with the students on the basis that the school failed to make a reasonable accommodation against the students (for example by allowing them to use an empty classroom).

The school appealed to the Alberta Court of Appeal arguing that its “non-denominational” beliefs “can be viewed as a ‘new’ religion” and should be protected by the Charter. Specifically, they said that the school’s belief that they must prohibit students from praying should overrule the Alberta Human Rights Act protections for the Muslim students.

The Appeal Court chose not to rule on this question but agreed it should be considered by the Human Rights Commission (since new evidence will need to be heard). This is an exceptional step as parties aren’t usually able to introduce new evidence or arguments in an appeal. The court granted it in part because it also said there were a factual errors in the Tribunal’s ruling.

Highwood

Randy Wall was a member of a small Jehovah’s Witness congregation in Calgary until he was disfellowshipped following allegations of drunkenness and verbally abusing his wife. Wall appealed that decision through his church’s process and, when he was denied, appealed to the Alberta Court of Queen’s Bench on the grounds that his expulsion and subsequent shunning by his community violated principles of procedural fairness.

The Court, and the Alberta Court of Appeal both ruled in Wall’s favour. The courts decided they had the jurisdiction to review decisions of private bodies if property or civil rights were engaged or if there had been a “breach of natural justice.”

The church appealed to the Supreme Court of Canada who, last week, struck down the lower court rulings. The Supreme Court said that (1) judicial reviews should only apply to arms of the state, (2) there’s no fundamental right to procedural fairness, and (3) courts cannot interpret religious dogma.

Now, this doesn’t mean courts can’t review the actions of private individuals or organizations. Those can be dealt with through standard contract law or may arise through Human Rights Tribunals. Simply put, you can’t ask courts to decide every disagreement between a small group of people through the specific process of a judicial review.

Masterpiece Cake Shop

Finally, a gay couple who were refused service by a Christian baker lost their case at the Supreme Court of the USA. The ruling didn’t go so far as to grant a religious exemption to US anti-discrimination laws but instead focused on the “hostility” of the Colorado Civil Rights Commission to religion.

While disappointing, it leaves LGBTQ anti-discrimination laws in tact for now. Read more from the FFRF.


Taken together these cases show the complexities of bringing secular principles into law. Webber Academy's arguments effectively amount to saying that organizations should have religious rights and those rights should include the right of atheists to tell religious individuals what they can and can’t do. This is directly contrary to what BCHA argued in Trinity Western University. In the Highwood decision, meanwhile, the granted religious organizations the continued authority to discipline their members behind closed doors.

These are complex cases and ultimately each leaves open more questions than it answers. Webber is likely headed back to the Human Rights Tribunal, Highwood only closes one door to judicial oversight of the affairs of private religious organizations and the Masterpiece Cake Shop decision is largely seen as an effort to punt the question to a future date.

We’ll likely have a lot more to say when the Supreme Court of Canada releases its decision on the TWU law school, which is expected soon.



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