“Gary Smith, the B.C. leader of the Church of the Flying Spaghetti Monster, wants to wear a pirate hat in his driver’s licence photo. ICBC has deemed the headgear “unacceptable.”
First they came for the pirate hats, and I did not speak out —
Because I was not religious
In terms of some of the differences between the Canadian Charter of Rights and Freedoms and the U.S Bill or Rights on religion, I forget one term anyway, but this seems to be the way it goes…
In the United States, the liberal Warren Supreme Court increased ‘religious freedoms’ to the highest protected status (this is the term I forget.) Before this, the Supreme Court seemed to be moving in the direction that religious freedom deserved no greater protection than any other philosophical view, but The United States vs. Seeger reversed that direction.
This highest protected status was shown with the Covid lockdowns when the Supreme Court ruled that states must treat houses of worship no worse than the most favored category of essential services.
In contrast, in Canada, religious freedoms seem to be at the lowest protected level when there are conflicting rights. In The Law Society of British Columbia vs. Trinity Western University, the Canadian Supreme Court ruled that religious education institutions could practice religious discrimination only in so far as it impacted fellow religious people.
Specifically, Trinity Western University wanted to grant law degrees while the school also discriminated against members of the LGBTQ+ Community. The Law Society of British Columbia refused this and the Canadian Supreme Court ruled that if Trinity Western University wanted to grant professional degrees upheld by accreditation bodies, that it had to follow the rules of those accrediting bodies, and not the other way around, that the accrediting bodies had to write their rules to accomodate ‘religious freedom.’
Of course, this is not the same thing as an individual seeking to exercise ‘religious freedom’ but it does show the difference between Canada and the United States.
You have awoken the Social Studies teacher in me. Read as much of what follows as you find interesting.
In 1963, in Sherbert v. Verner, the Warren Court held that in order to survive a free exercise 1st Amendment challenge, a law had to survive strict scrutiny. That meant that the law had to serve a compelling government interest and be narrowly tailored to that purpose (i.e. be the least restrictive means to achieve that purpose). This was upheld in 1972 (technically the Burger Court) in Wisconsin v. Yoder. But in 1990, in Employment Division v. Smith, Justice Scalia writing for the majority held that so long as a law of general applicability wasn’t aimed at curbing a religious practice, the 1st Amendment was not violated. In 1993, in Church of the Lukumi Babalu Aye v. City of Hialeah, the Supreme Court looked at a law forbidding animal sacrifice. The Court held that the law did violate the 1st Amendment because it was targeted at practitioners of Santería. In the meantime, Congress was upset that Sherbert and Yoder were overturned. In response, Congress passed and President Clinton signed the Religious Freedom Restoration Act (RIFRA) of 1993 which sought to reinstate the Sherbert test legislatively. However, in 1997 in City of Boerne v. Flores, the Court held that the federal government could not enforce the law against the states. But the law does still apply to the federal government.
RIFRA became much more controversial when it was used against the Obama Care contraception mandate. State versions of RIFRA are also seen as anti-gay because they may be used by florists, bakers, or photographers who do not wish to participate in same sex marriage ceremonies in violation of state civil rights laws. There has been speculation that several current Supreme Court justices may wish to overturn Employment Division v Smith and return to the Sherbert test. But only the justices know for sure. The irony of course is that the Sherbert Test was a creation of liberal justices that is now supported by the Right and opposed by many on the left.
Thanks, yes, I know of some of this. ‘Strict scrutiny’ was the term I couldn’t remember. I remember one of the cases that led Congress to write RIFRA in 1993 was over certain native tribe rights to smoke peyote as part of native ceremonies.
A couple more points here in Canada.
The dismissal of Gary Smith’s case I think comes down to this: unlike in these U.S cases, he isn’t taking on a situation where the organized religions are themselves engaging in discrimination. That is similar to Trinity Western, where they have a ‘covenent’ that clearly discriminates against the LGBTQ+. He is complaining about a situation where certain people – those in organized religion here- have greater rights – the right to wear their religious ‘symbols’ during government photographs that other Canadians don’t. Does this ‘greater rights’ in any way really impinge upon Gary Smith’s rights? I don’t see how. The Canadian Supreme Court I think clearly felt that Mr Smith was merely envious of other people, but that that was his problem and not the problem of those other people.
I think the Canadian Supreme Court basically felt ‘live and let live.’
I’m not familiar with the history of the Warren Court in terms of extending greater rights to (organized) religions but I wouldn’t be surprised if this was because the major religions at the time they felt sympathy to were on the left, for instance, the religion of Dr Martin Luther King Jr.
I think this is a reason for rulings to be evenhanded and not based on sympathies for certain groups that are dominant at the time (though, as I said, I don’t really know what they were thinking.) When the rulings aren’t even handed, as I think ‘strict scrutiny’ isn’t as it clearly provides the ability of religious organizations to engage in discrimination themselves (again I’d cite Trinity Western), it provides loopholes for other groups to walk through. I’m sure the Warren court liberal justices would now regret their rulings.
In regards to Canadian history and regret, this is some more history on the Canadian Constitution (or specifically the patriation of the Canadian Constitution and the Charter of Rights and Freedoms.)
When Pierre Trudeau was re-elected Prime Minister in 1980, he first tried to write a new Constitution uniliateraly (that is, just the Federal government and not the provinces, not that he wanted to write a new Constitution all by himself) but the provinces challenged in the Canadian Supreme Court, and won. At this time, the main purpose of the Canadian Supreme Court was to adjudicate jurisdictional disputes between the federal government and the provinces.
Among the provinces, there was an east/west split (the eastern provinces being Ontario and the small Atlantic provinces as Quebec with a separatist government opposed the patriation of the Constitution under any circumstances.)
This east/west divide was irregardless of political party – the western governments – left and right – both opposed the Charter of Rights and Freedoms to be ultimately interpreted by an (unelected) Supreme Court.
The four western premiers in 1981, conservatives Bill Bennett in British Columbia, Peter Lougheed in Alberta and Sterling Lyon in Manitoba and quasi socialist Allan Blakeney in Saskatchewan all opposed the implementation of the new Constitution and the Charter of Rights. The conservative premiers argued, as many conservatives still do, that it would give too many powers to judges and take away power from the people via the elected legislatures, the left wing Allan Blakeney was not all that different in his views, arguing that judges ultimately were conservative elitists who would spend their time primarily striking down social activist legislation.
Peter Lougheed, Sterling Lyon and Allan Blakeney were all lawyers themselves, and both Sterling Lyon and Allan Blakeney had been very prominent and highly regarded lawyers.
Sterling Lyon was also a rather blunt person. In one meeting between the premiers and Prime Minister Trudeau, Trudeau started off the meeting when the journalists were still present giving a speech full of flowery rhetoric. Apparently after the media had left, Lyon told Trudeau something like ‘that bullshit may work with the media and the public, but it doesn’t work with me. So, cut it out.”
Anyway, partly because of his bluntness, Sterling Lyon was defeated for re-election in 1981 and was replaced as premier by another quasi socialist and lawyer named Howard Pawley. As far as I can tell though, Howard Pawley did not play a prominent role in the writing of the Constitution in 1982.
Ultimately what the Premiers (with the exception of the separatist Premier of Quebec) and the Prime Minister wrote was largely the continuation of the prior Canadian Constitution, the British North America Act, along with a Charter of Rights and Freedoms, which was an expanded version of Prime Minister Diefenbaker’s Bill of Rights. (Of course, that was just a bill and did not have the full weight of being part of the Constitution) along with – at the insistance of the western premiers (though not necessarily Pawley) – a ‘notwithstanding clause’ which allowed the provinces and the federal government for many sections of the Charter (but not all) basically an ability to say ‘notwithstanding this Supreme Court ruling, the Supreme Court can bug off.’
To date, the only province that has used the Notwithstanding Clause more than once, or on any issue of real substance, has been…Quebec.
Their latest use brings us back to where we started – religious freedom, and this is even before the Canadian Supreme Court has even ruled on the case. The Quebec government, under a nebulous notion of ‘collective rights’ banned public sector workers from wearing religious symbols (somehow this is supposed to bring all Quebecers together.) Unlike with Gary Smith, this actually gives religious people less rights – if a public servants wants to wear a ‘generic’ necklace, fine, but if the public servant wants to wear a necklace with a cross, that’s not allowed. (I know a pedant would argue a Christian is not restricted from wearing a ‘generic’ necklace. As far as I’m concerned that’s no different than arguing that laws banning gay marriage weren’t discriminatory because gays could still marry people of the opposite sex.)
In Quebec, starting in 1960 as a deserved revolt against the oppressive Catholic Church, Quebec, in my opinion, has now swung the other way and is dominated by a group referred to as ‘militant secularists’ (what are you going to do – call them ‘fundamentalist secularists’ or ‘evangelical secularists’?) I find this sad because rather than embrace ‘live and let live’ I think this is a clear case of the oppressed becoming the oppressor.
As overly long as that post was, I want to make the distinction between Gary Smith and the Quebec situation clearer.
Gary Smith is essentially arguing that because certain religious groups, as part of their religious faith need to wear head coverings at all times, that he is discriminated against unless he has the same right as these religious groups. The Canadian courts, far more so than the U.S courts when dealing with rights based challenges look for evidence. I’m sure the courts – either the Supreme Court or a lower court – asked historians to intervene – has their even been a time anywhere in the world where non religious groups argued for a right to wear a head covering at all times? No? Then Mr Smith is just envious that certain religious groups, in order to practice their faith can do so, while he can’t. Tough for him, there right to do so in no way limits any of his fundamental rights.
This is completely different in Quebec. What they’ve argued is that any teacher, nurse, doctor… can not wear religious symbols in order to practice their faith (those who did so prior to this new law can continue to do so, but only in their current position – they can not be promoted.) Not only is this a denial of I think a fundamental right to practice religion, all in the name of some nebulous notion of ‘collective rights’ but, it’s incredibly stupid given the shortage of medical doctors and nurses in Quebec.
Prime MInister Pierre Trudeau was reviled by many Canadians, and deservedly so in many cases, but this is a sentiment it seems most Canadians agree with, especially when you don’t tell them that it was said by Pierre Trudeau beforehand. I think the sentiment expressed here is Pierre Trudeau’s greatest contribution to Canada:
Uniformity is neither desirable nor possible in a country the size of Canada. We should not even be able to agree upon the kind of Canadian to choose as a model, let alone persuade most people to emulate it. There are few policies potentially more disastrous for Canada than to tell all Canadians that they must be alike. There is no such thing as a model or ideal Canadian. What could be more absurd than the concept of an “all-Canadian” boy or girl? A society which emphasizes uniformity is one which creates intolerance and hate. A society which eulogizes the average citizen is one which breeds mediocrity. What the world should be seeking, and what in Canada we must continue to cherish, are not concepts of uniformity but human values: compassion, love, and understanding.
I’m agnostic. But I am a big believer in the 1st Amendment and religious freedom. Employment Division v Smith dealt with the right of (if I remember correctly) a drug counselor fired for the the religious use of peyote and whether he was eligible to receive unemployment insurance. Answer No, Yoder dealt with the right of Amish NOT to educate their children in public schools after 8th grade. Sherbert dealt with a Seventh-day Adventist fired for refusing to work Saturdays and whether she was eligible for unemployment insurance. Answer in 1963 Yes. All 3 cases dealt with religious minorities. That makes sense because majority religions don’t normally have to have their rights protected by courts.
I would like to see the Supreme Court overturn Smith and go back to the Sherbert/Yoder test. When you think about it, fundamentalist Christians are a religious minority, at least in “blue” states. The left is now largely opposed to the Sherbert test because they see it as a right to discriminate against LGBTQ people. I disagree. The 1964 Civil Rights Act was necessary because of the very large number of businesses that refused to serve African-Americans. There doesn’t seem to be a shortage of bakers, photographers, florists, or web site designers willing to assist same sex couples celebrate their weddings. Therefore what purpose is served by punishing those that are unwilling to do so? It seems to me that the purpose is to punish people with unpopular beliefs. Protecting such people is the purpose of the 1st Amendment. Besides, these businesses haven’t actually refused to serve LGBTQ people. The baker will sell them a cake. He just won’t design a cake to celebrate a same sex wedding. Besides, in part because RIFRA can’t be enforced against states, these cases have generally been argued as free speech cases. It can be argued that bakers, florists, photographers and website designers are engaged in expressive/artistic activities protected by the 1st Amendment. In addition to protecting your right to say what you want, the 1st Amendment also protects you from being forced to say things you don’t want to say. These individuals therefore have the right not to use their talents to express a message (“Yay Same Sex Marriage!”) they disagree with. I think there are at least 6 justices that will agree with those arguments.
Unless he’s been indicted on piracy charges, he’s just a poser.
Wearing that hat would be fraud.
Government has every right to prevent that from occuring.
Is there ANYBODY that believes in the pasta monster?
I came to the decision I didn’t have enough evidence to believe in God and began referring to myself as agnostic (except around one long term girlfriend’s very Catholic family). Despite not believing in God, I do have a personal morality, things I believe are right or wrong. Should a person’s religious beliefs be entitled to more protection than my reasoned ones? There is one important difference. If I have a moral objection to a vaccine because it was tested on animals or created using fetal stem cells or any other reason, I am not worried about being condemned to an eternity of hellfire if I give in and get the shot. But a religious person might genuinely have that fear. Ultimately, if I have personal moral concerns I don’t think are getting the respect they deserve, I do have the option of starting my own religion. I don’t need to have any followers beyond myself. But if I want my religious beliefs to be seen as being sincerely held, I just can’t make satirizing religion the basis of mine. Or could I?
My favorite author, Robert Heinlein, wrote a novel called Sixth Column, that was originally serialized in 1941. To say the book is problematic today is a huge understatement. The book is about a small team of scientists in a secret underground complex that discover a new miracle form of radiation just as the U.S. is conquered by the Pan Asians. See the problematic part yet? The radiation can transmute elements, heal disease, create force fields, and selectively incapacitate (or kill) people based on their race. They decide the best way to organize the resistance to the invaders is to create a religion because the Pan Asians don’t interfere in their slaves’ religions. I forget the name of their god, but that god had many aspects of which they worshipped 6. But according to the religion they create the gods of all other religions are just different aspects of theirs. That means of course that all religions are equally valid. So what if I created a religion where I worshipped a god that required me to mock and satirize all other religions because they all had it wrong? The more I think about it the better the idea seems. What did L Ron Hubbard say? If you want to be rich start a religion?
If you look past the outdated racism 6th Column is a fun book to read. But there is a significant amount to look past. In the America of this story there were very few Americans of Asian descent. There were so few, apparently the U.S. used surgically altered caucasians to infiltrate the Pan Asians. There is one Asian-American that appears in the story. There is no mention of Black people at all. Ok, having written all this, perhaps I should recommend the Moon Is A Harsh Mistress instead. That book is much less problematic so long as you don’t mind group marriages.
I am not up on the limits of Canadian free exercise of religion. In the U.S., the government may not decide whether a religious belief is correct or not. For example, if a prisoner said his Catholic faith meant he could never eat meat on Fridays (not just during Lent) the prison (or a court) could not respond with “in 1966 United States Conference of Catholic Bishops limited Friday fast to Lent therefore you need to eat hamburgers on Friday in July.” Obviously, prisons allow vegetarian meals, but my point is the government cannot argue a person’s religious beliefs are incorrect. What they can decide is whether a person’s religious belief is sincere. The problem for the Pastafarians, is that their entire religion is a satire of religion. Therefore, a court could not rule that Pastafarianism does not require its adherents to wear a pirate hat or colander in official pictures. But a court could (as the Canadian court did) rule that a person’s belief they had to wear such headwear was not sincerely held.
Here’s what I like about that: a smart person who does not truly believe in the pasta monster doesn’t have the right to wear a pirate hat in his ID picture, but a stupid person, one who actually thinks the pasta monster is real, may insist on that right because his belief is sincerely held. The United States has extra rights for the stupid!
Is this a great country, or what?
Whoops. That last comment was supposed to be a reply to yours.