Religious Freedom

LawNews

It must be said that there is no issue more personal than that regarding our health care and family planning choices. It must also be said that in a country that constitutionally recognizes the equality of men and women, the choice of family planning method – which could include abstinence, the pill, condoms, IUDs, or abortion – is NOBODY’s business but the person directly affected by them.

Our government is responsible for upholding the constitution, which includes making sure that groups that do not recognize people’s constitutional right to make their own decisions regarding their healthcare will not get public funds. The Canadian federal government has made this clear via their recent announcement regarding the Canada Summer Jobs Program (CSJ).

The Canada Summer Jobs Program is an initiative by the federal government to encourage employers to take on summer students at the secondary and post-secondary levels by offering to subsidize the students’ wages for them.

The subsidy works for public and private employers as well as non-profit organizations and small businesses and has several priorities including the supporting employers who hire students from underrepresented groups such indigenous Canadians, the disabled, and visible minorities, and those that support opportunities in science, technology, engineering and math (STEM) for women. Applications for the subsidies must be made by potential employers, though recently the Trudeau government added an additional catch to the program’s requirements.

Those who apply to the CSJ program now have to attest that:

“Both the job and the organization’s core mandate respect individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights. These include reproductive rights and the right to be free from discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability, sexual orientation or gender identity or expression.”

The federal government’s website adds the recognition that women’s rights are human rights and that their rights include “sexual and reproductive rights — and the right to access safe and legal abortions.”

This announcement was never meant to turn Canada into the next front in the battle between those that believe people have a right to their choices and those who do not. That issue was already settled in the early 90s when, following the Supreme Court striking down Canada’s abortion laws in 1988, the Senate voted against a new abortion law put before Parliament by the Mulroney government. Public opinion confirms this, for according to a 2017 Ipsos poll, 77 percent of respondents feel abortion should be permitted.

The announcement was simply meant to be a way to fix a subsidy issue after the Abortion Rights Coalition of Canada published a report indicating that federal funding was going to anti-abortion groups in the summer of 2016. Federal Employment Minister Patty Hadju’s office then put out a statement apologizing for the oversight and stating that “no such organizations will receive funding from any constituencies represented by Liberal MPs.”

All the Trudeau government is doing is obeying the law by enforcing the gender equality statutes in the Canadian Charter of Rights by making anyone who does not conform to them ineligible for Federal funding.

It is Conservatives who have turned this minor subsidy issue into a religious crusade about abortion. The fiasco that followed is not an ideological debate about religious freedom but rather the result of some groups’ anger at losing government money they feel they are entitled to.

Organizations like The Southern Alberta Bible Camp who have publicly said “we don’t believe abortion is right” stand to lose about $40 000 in subsidy money if they refuse to sign the aforementioned attestation.

Conservative leader Andrew Scheer has accused the Prime Minister – a self-proclaimed “proud feminist”- of imposing his views on faith groups. This is the same Andrew Scheer one of his supporters assured me would not take on abortion rights in Canada following his election to leadership of the party.

“I believe that the federal government should respect the freedoms that Canadians enjoy to have different beliefs and that by imposing personal values of Justin Trudeau on a wide variety of groups is not an appropriate way to go,” Scheer has said.

The government has not said that groups that openly condemn abortion and LGBTQ2 groups cannot operate in Canada. As per our religious freedoms and right to freedom of speech guaranteed in the constitution, they can do as they please within reasonable limits prescribed by law. All the federal government has done is said that they cannot get government money to hire young people to help them do it.

Since the Conservatives have turned this into an abortion issue, let’s look at those that claim to believe in women’s equality and still be pro-life.

Despite the claim of many conservatives, one cannot recognize the constitutional right of women’s equality to men and be pro-life at the same time. It is not feminism these self-proclaimed “pro-life feminists” are embracing, but rather benevolent sexism.

The reason is this: the most secular anti-abortion arguments rest on the unspoken notion that women are not strong enough, mature enough, or intelligent enough to make their own decisions regarding their reproductive health. They are welcome to every freedom men have, except with regards to their deeply personal reproductive choices. ]

They will use arguments about sex selective abortions to make this point, while completely ignoring the numbers and whether or not the procedure was necessary to save the woman’s life. It is the same kind of benevolently sexist argument the most vicious secularists make in Quebec when trying to force Muslim women to stop wearing the hijab or niqab: the infantilizing argument that presumes that no woman is capable of making such a decision of her own free will but rather makes difficult decisions out of selfishness, impulsivity, or external pressure.

It is a notion that must be recognized for what it is: a contradiction of the notion of gender equality entrenched in Canadian law.

Those who stand to lose funds as a result of this will be doing so because their mandate does not fit with that of the Canadian government. We also need to ask how much the federal government will be checking up on those who do sign the attestation.

Is this an administrative rubber stamp where people can attest to one thing and do another? Or will the federal government take steps to make sure that those who do get the funds stay true to their attestation?

Without any sort of checks, the attestation is meaningless.

If it is meaningless, then groups who really want to the money to hire a student to distribute photos of fetuses outside clinics should have no trouble signing it.

LawNewsPolitics

On January 31, 2017 US President Cheeto-Head named Judge Neil Gorsuch to the Supreme Court. The nomination fulfills Cheeto-Head’s promise to name a conservative justice “in the mold of Scalia” if elected president (legally or illegally). Since so much of what the Orange Racist Misogynist Tax Evader has done is questionable at best, it is time to take a serious look at the man he has appointed to the highest court in the United States.

Neil Gorsuch is in many ways the embodiment of what conservative Christian Republicans think a judge or politician should be. He is a white middle aged male who Is devoutly Christian, but not Catholic (his family are Episcopalian). He is well spoken, looks good in a suit and tie, and while he and his college sweetheart wife and two kids raise horses, chickens, and goats at their home in Colorado, they are no rednecks.

His family has a history of serving Republican presidents. Gorsuch’s mother, politician and lawyer Anne Gorsuch Burford, was appointed by former president Ronald Reagan to run the Environmental Protection Agency. For Republican climate-change deniers, Gorsuch Burford was ideal for she slashed the EPA’s budget, cut most clean water regulations from the books, and filled vital positions within the Agency with people from the very industries it was supposed to be checking. The scandals resulting from her actions led to her resignation in 1983.

Gorsuch’s resume is impressive. He is a graduate of Columbia, Harvard, and Oxford. After a couple of clerkships with conservative judges, he worked in private practice at a prestigious law firm in Washington DC for ten years and eventually ended up as a Federal Appelate Judge based in Colorado. At the same time Gorsuch has served as an occasional adjunct law professor at the University of Colorado.

There are also a lot of concerns about Judge Gorsuch.

People are worried that he is anti woman and would choose religious freedoms over people’s right to self determination.

There is a lot of evidence to support this worry.

While at Oxford, Gorsuch studied under Professor John Finnis, an Australian legal scholar who is considered an expert on natural law. After his studies, the Gorsuch and Finnis remained close. This seems harmless, but it’s not when you consider that Gorsuch’s mentor wrote about “the evil of homosexual conduct” in 1994 and has been branded a hatemonger by many.

As a judge, Gorsuch has a history of favoring religious freedoms over people’s right to health care and self determination. In the famous Hobby Lobby and Little Sisters of the Poor cases involving for-profit corporations demanding religious exemptions from the contraceptive mandate of the Affordable Care Act requiring corporate health plans to cover contraceptives for female employees on penalty of fines for refusal, Gorsuch sided with the corporations. In the Little Sisters of the Poor decision, he wrote that it was:

“An issue that has little to do with contraception and a great deal to do with religious liberty … When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes substantial burden on that person’s free exercise of religion.”

Though Gorsuch has never decided an abortion case, he did publish a book called The Future of Assisted Suicide and Euthanasia in 2009 and many argue that the views expressed in it could easily transfer to abortion. In his book he says that human life is “fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong.”

Whether this view actually extends to abortion remains to be seen, but it has caused enough concern that the National Institute for Reproductive Health has called his appointment “an extension of the Trump administration’s attack on women’s rights,” and Senator Bernie Sanders tweeted on January 31, 2017 that:

Despite his worrisome track record on certain issues, Gorsuch does show promise for two fundamental reasons.

First, he is outspokenly against excessive criminalization. That means that he thinks there are too many criminal laws punishing ordinary behavior on the books.

In 2013 he gave the 13th Annual Barbara K. Olsen Memorial Lecture in which he points out that too many laws violate people’s rights to fair notice to the point that “criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity.”

Neil Gorsuch’s legal decisions reflect this belief as he often sides with defendants in criminal cases. This bodes well when it comes to issues of race for African Americans and Hispanics are excessively targeted and prosecuted in the United States.

Another reason to hope is because of Gorsuch’s belief in the judiciary’s role in containing the excesses of Executive Power. He is in favor of term limits for elected officials because “men are not angels.”

Though, like Scalia, he believes in interpreting the constitution from the perspective of its authors. This comes with an understanding of the need to enforce the checks and balances on the legislative and executive branches to save the country from abuse by those who govern it.

Though thus far only lower courts have halted the enforcement of abusive and illegal Executive Orders from the Oval Office, Gorsuch’s reputation as a principled jurist against executive excess suggests that he would not hesitate to rule against the White House if he ascended to the Supreme Court.

Though there is hope for the United States, there is also the danger of a deadlock. Democrats are still bitter about the Senate’s refusal to confirm Judge Merrick Garland, who was named to the Supreme Court by Barack Obama. Like Garland, Gorsuch is mostly respected across party lines, so the question remains whether the Senate will do its job this time, or give the Cheeto Administration the silent treatment.

LawNews

The Borough of Outremont recently passed a zoning law banning any new houses of worship from establishing themselves on Laurier and Bernard Avenues. The goal of the law is encourage businesses in the area, particularly around Laurier, Bernard, and Van Horne, and create a public secular space.

The vote was four in favor, one opposed. Mindy Pollack, a member of the borough’s Chasidic community, was the city councilor who voted against the bylaw. She and other members of the borough’s religious Jewish community argue that the new bylaw doesn’t take into account the needs of the community and claim that it isn’t based on any demographic studies.

They demanded that the vote on the bylaw be postponed until demographic studies were conducted with the participation of Outremont’s religious communities. The Borough’s council went and voted on it anyway despite a letter from constitutional lawyer Julius Grey threatening to immediately contest the bylaw before the courts should it pass.

Those against the bylaw argue that it shows a remarkable insensitivity to the religious Jewish community in Outremont. Religious Jews cannot drive automobiles or use public transit on the Sabbath. The ban would allegedly force them to walk 20 to 30 minutes to a house of worship.

By Jeangagnon – Wikimedia CC BY-SA 3.0
By Jeangagnon – Wikimedia CC BY-SA 3.0

Those in favor of the bylaw argue that it will encourage businesses to open and expand in Outremont and provide a safe secular space.

Here are the facts:

The bylaw in question was actually based on a demographic study. But it was a demographic study that’s four years old. The working paper issued by the Borough of Outremont prior to the vote cited a 2011 demographic study of the religious demographics of the area. The Chasidic Community is growing exponentially due to high birth rates, so the numbers in the report would most certainly be out of date.

This same working paper raised concerns that allowing places of worship in certain areas would result in a concentration of them in a given area that would ultimately lead to clashes between religious communities and secular residents and businesses, ultimately deterring the latter. These concerns are not unfounded.

In 2008, for example, a YMCA in Outremont succumbed to pressure from a neighboring Chasidic synagogue that complained because they could see women exercising in outfits that didn’t conform to their sense of modesty. The religious community argued that it was distracting their teenage boys and agreed to foot the $3,500 bill for the YMCA to install frosted windows. Though the Chasidic Community considered the solution a reasonable one, many members of the YMCA begrudged the accommodation and felt that their freedoms were being curtailed for extremist religious sexism.

outremont

Places of Worship in Quebec do not pay municipal taxes. According to An Act Respecting Municipal Taxation, property belonging to a religious institution constituted as a legal person and used primarily for public worship is exempt from municipal property and school taxes. They’re also exempt from business taxes if their activities are part of the exercise of public worship or for charitable or religious goals and would have no monetary gain for the institution. That means that any new place of worship wouldn’t bring any revenue and would only benefit the borough in a purely cultural way.

The new bylaw doesn’t affect existing places of worship, only new ones.

When laws allegedly infringing on religious freedoms go before the courts, religious groups often win. Cases are generally argued on the basis of the Canadian Charter of Rights and Freedoms, which guarantees freedom of religion and equality before the law.

The Supreme Court of Canada has ruled on everything from a Sikh’s obligation to wear a ceremonial dagger and turban, to the Jewish obligation on Sukkot to set up a small outdoor shack (called a Sukkah) for meals, to rants against LGBT people made by people claiming to be good Christians.

In most cases, the Supreme Court ruled in favor of the religious groups or individuals, so it’s highly likely a constitutional challenge to the bylaw would succeed. All Outremont’s religious Jewish community would have to argue is that the ban on using any mode of transportation on the Sabbath is associated with their religion and that the petitioners’ belief in this practice is sincere. From there, it’s a matter of arguing that the bylaw interferes with their right to practice their faith.

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It would then be up to the Borough to prove that the bylaw is both important and necessary. The Borough would also have to argue that the bylaw’s limit on freedom of religion is rationally connected to its purpose, encroaches on this freedom as little as possible, and strikes a fair balance between the negative effect of the bylaw and its’ benefits. This test, established by the Supreme Court of Canada in R. v. Oakes, [1986] 1 S.C.R. 103 is used to gauge the constitutionality – as per Canadian Charter of Rights and Freedoms – of any legislation brought before the courts.

There are no specific religious laws in Judaism regarding the location of a synagogue. However, since most religious Jews don’t believe in using any form of motorized transportation on the Sabbath, it would be pointless to establish one that wasn’t within walking distance of its congregants. Conversely it should be noted that many religious communities on the Island of Montreal have successfully established houses of worship in residential areas and even parks. The Beth Zion Congregation in Cote-Saint-Luc for example was started in the basement of one of its members and was eventually moved to a park in order to allow for potential expansion.

Having said all that is the new bylaw discriminatory?

Yes.

It clearly discriminates not just against Chasidic Jews, but against every religious community in Outremont.

Was the bylaw passed without a proper up-to-date demographic study of the borough?

Yes indeed.

Is it unconstitutional?

That’s up to the courts.