Experts say there’s a problem with prayer in the Legislature
PROVINCE by Gregory Beatty
Since the Saskatchewan Legislature’s first session on Sept. 4, 1905, the Speaker has begun each sitting by reciting an Anglican prayer. It’s an invocation that praises the Lord and asks for help in deliberations so “we may glorify thy holy name” and attain “everlasting life.”
But after a unanimous Supreme Court ruling, that practice has been called into question.
On April 15, Canada’s Supreme Court ruled that Saguenay, Quebec’s city council’s practice of opening its meetings with a Roman Catholic prayer was unconstitutional. The decision had an immediate impact. In Regina, Mayor Michael Fougere said the city would abide by the ruling and discontinue its practice of opening council meetings with a prayer. Saskatoon council meetings don’t open with a prayer, but it’s been a contentious issue at city events before.
Saskatchewan premier Brad Wall, however, said that he’d never received any complaints about prayer in the legislature and saw no reason to stop the tradition. But others applauded the Supreme Court ruling.
“We support freedom of religion,” says Eric Adriaans, executive director of Centre for Inquiry Canada, which champions a secular vision of society based on critical thinking, science, and evidence-based decision-making.
“But we also say freedom of religion means freedom from religion. If a politician wants to pray in private, that’s their right. When you put religion in a privileged position in government, however, you’re automatically excluding those who don’t agree with that.”
The Saguenay case began with a human rights complaint and took eight years to wind its way through courts. In its decision, the Court said the state is required to act in a manner respectful of every person’s freedom of conscience and religion, and that in opening its meetings with a prayer, Saguenay city council was breaching the state’s duty of neutrality.
Wall, though, stood firm. On Facebook, he even posted video of the Speaker reciting the prayer, and joked that in doing their jobs politicians needed all the help they could get.
That post drew many supportive comments, with some people even urging him to reintroduce prayer into the classroom.
Federally, Wall’s position was echoed by Conservative Justice Minister Peter MacKay. There, the tradition of the Speaker opening each sitting of the House of Commons with a prayer dates back to 1877.
Both the Wall government and the Harper Conservatives have a history of clashing with the Supreme Court. In January, for instance, the court struck down the province’s essential services legislation. And federally, numerous pieces of legislation have been overturned in recent years.
This time, though, they might have an out, says University of Ottawa law professor Carissima Mathen — thanks to parliamentary privilege, which has its roots in the Westminster Parliamentary system and the 1867 BNA Act under which Canada was founded.
“I think the principles the court articulates about the state duty of neutrality apply to any level of government,” says Mathen. “If anything, I think the duty would apply more strongly to the higher levels — to the provincial legislatures and absolutely to Parliament. But those bodies also have a zone of immunity from court interference, which is their parliamentary privilege.
“The issue is whether a decision to open proceedings with a prayer would fall within that privilege,” she says.
Parliamentary privilege applies to free speech, freedom from intimidation, the right to institute inquiries and call witnesses, and other key rights and freedoms that MLAs and MPs need to make sound decisions on our behalf.
But parliamentary privilege isn’t absolute. Mathen cites one case where an employee of Parliament claimed discrimination and wanted to launch a human rights complaint.
“The court held that parliamentary privilege didn’t mean that Parliament was immune to the application of the Canadian Human Rights Act in respect to its employees,” says Mathen. “This case is a little different. But is prayer really necessary to the functioning of the legislature?
“Generally, the courts are cautious when faced with decisions related to the internal proceedings of provincial legislatures,” she says. “But legislatures have to embody the foundational values of Canadian society — one of which is religious freedom.”
Unfortunately, religion and politics have become inextricably intertwined since the rise of the Christian right in the early 1980s. You can bet Wall’s Facebook post was made to fire up the conservative Saskatchewan Party base ahead of the next provincial election.
Mathen doesn’t like it.
“That kind of pure political calculation is really unfitting for his role as premier,” says Mathen. “Different obligations come with that role, as opposed to being a party leader. To have those kind of blatant political considerations affect a decision that appears to portray the state as not neutral is not consistent with what I see as his broader obligation.”
But is Wall on solid legal ground? In an April 21 column, the Leader-Post’s Murray Mandryk argued that the mention of God in the preamble of The Constitution Act (1982) supports Wall’s plan to continue the practice of prayer in the legislature.
“That argument was made in the Saguenay case,” says Mathen, “and what the court said is that the mention of God in the preamble cannot reduce the protection that is given to religious freedom which is enjoyed both by people who are religious and people who are not religious, or who perhaps don’t want to identify themselves as being religious.
“So you can’t use the mention of God in the preamble to argue the state’s duty of neutrality is somehow weakened, or that it’s okay for the state to endorse a religion or send a signal that it’s better to be religious than not religious.”
And if someone decides to launch a human rights complaint? Mathen says defending prayer in the legislature would be “far from a slam dunk” for Wall and the Sask. Party government.
Adriaans questions the wisdom of any government getting into a protracted legal battle to defend prayer as part of its proceedings.
“One question we would ask people is, ‘Now that the law’s been set, do think it’s acceptable to spend more public money on a religious privilege that’s been [ruled unconstitutional]?
“The Saguenay case took an awful long time, and there’s human rights decisions in some provinces that show this shouldn’t be happening,” he adds. “Why spend even more taxpayers’ money on something that’s already been resolved?”