Robert Fulford writes a complex piece in this morning’s newspaper ["Modernism isn't written in stone", National Post, Saturday, August 25, 2007, p. A23], with which I both agree and disagree. Fulford, in his usual concise way, does three things at once. First, he posits the separation of religion and government as essential to the development of modern democracies, citing the contest between Islamists and secular nationalists as central to determining the political course of Middle Eastern societies. Next, he states that although state-imposed religion is always pre-modern, contemporary democracies can and do differ on their particular approach to the subject and that not all adhere to the model of strict separation. Finally, he states that Ontario’s public support for a Roman Catholic separate school system is in the tradition of democracies giving a small nod to religious heritage without undermining their essential liberal structure.
In my view, Fulford is right when he identifies the defining struggle for modernity in the Islamic world being that between secular nationalists and those who demand a religious society. Although much oppression in this part of the globe is carried out in the name of secularism as opposed to religion (Egypt, Syria, and Turkey spring to mind), the separation of mosque and state does seem to be a prerequisite for emergence from the illiberal politics of so many states in the Persian Gulf and broader Middle East region. What’s more, the struggles of the Islamic world are a reminder to everyone that the separation of religion and state is one pillar on which liberal constitutional governance has been erected.
Fulford is also correct in saying that modern democracies can differ in their approaches to religion. Israel, as he notes, gives privileges to Orthodox Jews that other religious adherents do not enjoy. I would add that the U.K. gives elevated status to the Church of England that other religious institutions do not share. Italy carves out several square blocks of its sovereign territory for the Vatican and for no other religious headquarters. These differences mark their respective societies not as imposed religious belief, since they are democracies with freedom of religion for all citizens, but rather as part of the national identity. Israel is a Jewish state, England an Anglican one, and Italy a Roman Catholic one, and yet they are all - albeit each with their own flaws - constitutionally liberal ones. Those of other faiths who live in those countries should perceive the religious element of the nation's identity as part of, and not in opposition to, their liberal societies.
Where Fulford gets it wrong is in analogizing these nods to religious identity with Roman Catholic separate schools in Ontario. Canada is an Anglo-French society, and therefore English schools in Quebec and French schools in Ontario and elsewhere get special treatment not enjoyed by other minority language speakers. The Supreme Court of Canada, in Adler v. Ontario, [1996] 3 S.C.R. 609, said, in so many more words, essentially what Fulford says in his column – that Catholic and Protestant denominational schooling is not just a constitutional technicality flowing from the politics of 1867, but is part of our fundamental social pact much like English and French language rights. In the Court’s view, section 93 of the BNA Act (denominational schools) and section 23 of the Charter (language education rights) are in the same category as representing the building blocks of Canadian society.
This seems to me to reflect a misguided sense of nationhood, leading to a misguided reading of the constitution. The trial judge in Adler (1992), 9 O.R. (3d) 676 (Ont. S.C.) was willing to acknowledge the section 93 rights of separate schools as an unfortunate “constitutional anomaly”, but was unwilling to go any further toward philosophically justifying the constitutionally mandated school situation. If the Supreme Court wanted to uphold the status quo, which they did, they should have done the same as the trial judge. Until we are willing to say that Canada is a Protestant-Catholic society just as it is an Anglo-French one, and that support for the constitutionally specified religious schools is a matter of national identity, Ontario’s public funding of Roman Catholic schools and no other religious schools is not in any sense right. It is an enforceable anomaly in the context of our otherwise liberal constitutional norms, but in theory it is just plain wrong.
The French verses of the national anthem may contain vestiges of a religio-national identity (Car ton bras sait porter l'épée, Il sait porter la croix!), but we have for the most part neutralized our religious heritage and constituted ourselves as a bilingual/bijural, and otherwise multicultural society. Quebec, which represents the other side of the section 93 “solemn pact” (to use the Supreme Court’s words), has transformed its Protestant school board into an English language board, correctly identifying the national minority group in that province. Ontario has maintained a Roman Catholic school system not for French speakers but for members of a privileged religion. For Canada to be a modern liberal democracy, and for the constitution to be consistent in its overall normative structure, that religious privilege must either be eliminated or shared equally with others.