By Nicholas Newman, MD
On the 9th of February 2011 the Honorable Michèle Pauzé of the Québec Human rights Tribunal declared that no prayer or religious symbols are allowed in the Saguenay City Hall nor, indeed, anywhere in the apparatus of the State . L’Honorable Pauzé based her decision on the Québec Charter of Rights (subordinate to the Canadian Charter of Rights) which, apparently, imposes strict neutrality on the State with regard to religious beliefs. Numerous judicial precedents were cited in support of this decision which was not merely a rejection of traditional Catholic culture. The banning of all religion in the State apparatus was considered such a fundamental matter that the normal democratic means of deciding what goes on in City Hall i.e. majority decisions by democratically elected officials, were overruled by L’Honorable Pauzé.
I am of the opinion that this judicial decision is fundamentally incoherent: The Charter of Rights of Québec, like that of Canada and our whole system of justice, are founded on transcendent beliefs. For the state to use such transcendent or religious beliefs in order to outlaw all religious manifestations by the State is incoherent. This is not to argue against the separation of Church and state, which is itself a Christian doctrine whose origin goes back to the first century . I argue that getting rid of all manifestations of religion in our government will also rid us of the Charter and our system of justice.
Let me explain. The preamble of the Quebec Charter says that we Human Beings are all Equal in value and dignity. If we presume that this preamble is not simply a meaningless formulation or mere legalese or sentimentality, we must take it seriously. We must be treated equally under the law, not because this is an arbitrary or invented obligation, but because we all are, in some real sense, Equal.
From a purely scientific perspective human Equality is nonsense. Chimpanzees are not all equal. We, Homo Sapiens, are clearly not equal in any measurable sense. We could ask a student of Darwin such as Daniel Baril, the expert witness in the Saguenay Mayor Tremblay case, whose testimony was highly considered by the Tribunal. Are not Homo sapiens made up of the fit and the unequally unfit? In a rational scientific sense are not men and women complementary rather than equal? From a scientific sociological perspective one can ask which gender commits the most violent crimes, is the least prone to cooperation and is thus the most inimical with regard to life in a democracy. Clearly males and females are highly unequal as regards our democracy.
The Charter does not, of course, declare that Humans are Equal in any measurable or rational sense; rather, we are Equal in value and dignity. If equal value and dignity mean anything they mean something that transcends our factual and rational inequality. Often disregarded, the belief in Equality, obliges men, in particular, sometimes against base instinct, not to use their superior strength to control or harm women. The Charter is declaring a transcendent belief, with very real consequences, which has all the appearances of a religious belief. In fact, it is a religious belief that comes straight from our Judeo Christian heritage.
This is not to say that human Equality is incompatible with other religions or belief systems; this may very well be so. Many would claim that our modern conception of human Equality owes more to the Laicism of the Enlightenment than to Christianity and this is a defendable thesis. Nevertheless no enlightenment thinker demonstrated or proved human equality, to my knowledge. For the Enlightenment and, analogously, for Christianity, human Equality was and remains a belief . Equality is not science nor, strictly speaking, reason. The Charter, in declaring human Equality, is being transcendent or religious.
The Charter preamble also declares, with no proof, that we are free. This does not merely refer to the fact that most of us are not in chains. Belief in real human freedom, or free will and its corollary, individual responsibility, is essential to our system of justice. In fact, our justice system presumes that criminals had the free will not to commit their crimes. If an accused had no free will, if his actions were entirely determined by heredity, and environment, as in a severe case of mental illness, he would not be found a criminal. Only if the court concludes that, despite all the mitigating circumstances of nature and nurture, from bad upbringing to addiction, the accused did indeed make a free will decision to pull the trigger, could he be condemned as a criminal
And yet there is no scientific evidence that free will or real liberty exist. No animal species has freedom. The lion hunts, kills, mates and dies in the control of an enormously complex internal and external environment in which freedom plays no part. Why should one suppose that Homo sapiens have freedom? Just because we like the idea is irrelevant. We are all made of molecules and we react to our environment according to the internal and external forces that we encounter. All our thoughts, emotions and actions have a molecular substrate. Molecules are not free. We can be can be manipulated by those in power all the while thinking, wishing or hoping to be free.
Freud did not believe in free will. I have not been able to find a single scientist who has rationally defended the supposed existence of free will. Where is the proof that free will exists? There is none. Free will is a transcendent or religious belief analogous to belief in Equality. Again, belief in human free will comes from our Judeo-Christian heritage. The corollary of Free Will: Individual Responsibility, is present from one end of the Bible to the other.
Scientists have addressed the question of freedom, notably, Dr. Stephen Pinker,well-known and published cognitive psychologist. He observes that our human biology has evolved to give us the tools to live in society and makes us respond to reward and punishment such that our legal system does, in fact, work even though Free Will is nonsense. Were we to take Pinker seriously, we would be thus analogous to white rats in a cage who respond to rewards and punishments such that we, for the most part, get along in society with our fellow white rats. The rewards and punishments are determined, of course, by the unequal white rats in power.
I submit that any judge who did not believe in Human Equality and Free Will (Individual Responsability); or who believed his or her role to be primarily as an administrator of a behavioural control mechanism, would be illegitimate.
Let us return to the Saguenay Mayor Tremblay case. Expert witness Baril, noted anthropologist, provided testimony leading to the obvious conclusion that the crucifix, prayer with accompanying sign of the cross and a statue of the Sacred Heart are manifestations of (Catholic) religion. Although Baril used a very broad definition of religious symbolism , his testimony did not even touch on the possible transcendent or religious nature of beliefs that are at the foundation of our society such as Free Will and Equality. Baril sees religion as something primitive, largely trivial, that gives identity to a person or group while excluding others. Baril was not questioned on his beliefs in Equality or Free Will nor was any other witness, although expert witness Dr. Lefebvre (S.L.) was questioned as to her belief in, seemingly irrelevant, particularities of Catholicism. Lefebvre, while ignoring the foundational role of religion in society, pointed out that no major democracy is completely neutral as regards religion. Why should Quebec or Canada be different? No one was asked. The Supreme Court of Canada in the Anselem case opined that ‘in essence religion is about freely and deeply held convictions or beliefs’. What are Equality and Free Will if not deeply held convictions or beliefs? Honorable Michèle Pauzé completely ignored this while maintaining that religion should have no role in the function of the State.
Dignity, justice, peace, freedom, guilt, pardon and equality are all stripped of their meaning if one removes their transcendent (or religious) origin. The evidence is clear that: 1. There is a religious foundation to our democracy, justice system and Charter of Rights and 2. The foundation is our Judeo-Christian heritage. How can we be anything but partial to this tradition which has allowed us to develop as a democracy? I submit that judges and intellectuals who insist on complete religious neutrality are being unreasonable. Or perhaps they do not believe in our democracy and system of justice? This latter question is especially pertinent in this case since both plaintiff and the most significant expert witness Baril claim to be atheists. Can a rational atheist demonstrate or give reasons to accept (not believe- that would be religious) transcendent Equality and Free Will? Of course Charter rights apply even if one does not believe in them.
The plaintiff in the Mayor Tremblay case was violated by removal of his Charter rights to Freedom and Equality according to this judgment, which affirms that the State must be strictly neutral with regard to religious beliefs. But as the Charter, like Mayor Tremblay’s two minute City Hall prayer, manifests religious beliefs, it too must be illegitimate, and this leads to a contradiction. I conclude that l’Honorable Pauzé has made a narrow blinkered decision that has fallen into the incoherence of using State declared religious or transcendent beliefs to ban all such beliefs in the function of the State. Does l’Honorable Pauzé feel secure sitting on the strong branch of Charter-Liberty-and-Equality while she, unwittingly, saws off this same branch close to the trunk?
In my opinion, for the above reasons, this incoherent decision should be overturned.
– Dr. Newman is a Quebec director of the Catholic Civil Rights League.