Separation of Mind and State

[Abortion is] a sad, even tragic choice to many, many women. There is no reason why government cannot do more to educate and inform and provide assistance so that the choice guaranteed under our constitution either does not ever have to be exercised or only in very rare circumstances.

Take a minute and try to guess the identity of the speaker quoted above. I'll give you a clue--it is a federal politician. Steven Harper? Well to be more explicit, an American federal politician. George W. Bush? Nope. Vice-President Cheney? Wrong again. Condoleeza Rice? Way off.

OK, let's try one of the next generation of would-be GOP leaders. Senator McCain? I'm sure he believes what is quoted, but he's not the source, nor is Governor (and evangelical pastor) Mike Huckabee. (Mormon) Governor Mitt Romney? Not at all. Mayor (and professed Roman Catholic) Rudy Giuliani? Can't be. He's pro choice, at least politically.

Give up? It's Hilary Rodham Clinton, whose remarks to a Democratic group in 2005 shocked their little socks off. The British newspaper Telegraph noted that Ms Clinton went even further:

She also praised religious groups which have run chastity campaigns for young people, encouraging millions of teenagers to pledge sexual abstinence before marriage. Last week in Boston, Mrs Clinton spoke of God more than a dozen times and stated that she had always been a "praying person".

Backing President George W Bush's faith-based initiatives, which offer federal money for religious groups' charitable works, she said: "There is no contradiction between support for faith-based initiatives and upholding our constitutional principles." (qtd. from "Gasps as Hillary woos the anti-abortion vote," Francis Harris in Washington, Last Updated: 26/01/2005)

To give Ms Clinton her due, she has not backed off on the importance of letting religious morality shape one's worldview now that she's in the Democratic leadership race. As quoted in Time (July 23, 2007, p. 17) she made this statement:

Maybe we're getting back to where people can be who they are....If faith is an element of who you legitimately, authentically are, great. But don't make it up, don't use it, don't beat people over the head with it.

Her main opponent (at this writing), Barack Obama, who attends a church in the religiously liberal United Church of Christ denomination, agrees with the legitimacy of holding and proclaiming religiously-shaped views:

If we scrub language of all religious content, we forfeit the imagery and terminology through which millions of Americans understand both their personal morality and social justice (Time, July23, 2007, p. 18).

It's important to keep in mind that the American constitution includes a formal separation of church and state. This is often interpreted to mean that religiously-informed views have no place in public discourse in a pluralistic society, but it has more to do with no particular religion or denomination being favoured over another. Therefore, while Christian (or any other) prayers in public schools are disallowed, given that they would indicate a preference for a certain religion and force students to participate in a religious rite, the distribution of Gideon bibles, or the formation of religion-based clubs on campus, is quite legal. Ms Clinton is suggesting nothing illegal in lending her support to federal funding of religious groups doing charitable work.

Here in Canada, glorious and free, no such constitutional separation of church and state exists. Nevertheless, Canadian governments and courts often tend to act as if a ban (some might say a very high and impenetrable wall) in fact pertains and rules out any government support of certain kinds of activities with religious connotations. [The same is true of many foundations in choosing whom they will fund.]

Take for instance the famous, and very important, case of Chamberlain vs. School District 36 (Surrey, BC). A Surrey school district teacher named James Chamberlain was using certain books that presented families where both parents were of the same sex (female or male) with his primary school children. When certain parents objected and asked that their children be put in another class, the school board eventually banned the use of the books (although they left them on the library shelves). Since the parents had religious objections, and because some of the trustees shared these views, the public perception was that the decision was religiously motivated and intolerant.

BC Supreme Court justice Mary Saunders overturned the board's decision. She put considerable weight on two provisions of the BC School Act in coming to her decision:

1. All schools and Provincial schools must be conducted on strictly secular and nonsectarian principles.
2. The highest morality must be inculcated, but no religious dogma or creed is to be taught in a school or Provincial school.

Madame Justice Saunders' understanding of what the terms nonsectarian and secular mean can be deduced from comments included in her reasons:

1. When the school board passed the books resolution, some of the trustees who voted in favour of the resolution were motivated to a significant degree by concern that parents and others in the School District would consider the books incompatible with their religious views on the subject of same-sex considerations.
2. The public school is a place independent of religious considerations.
3. Today, s.76 of the School Act.... follows the longstanding habit of public school statutes in British Columbia, consistent with the broad diversity of the peoples of British Columbia, of emphasizing a non-religious school system.

Therefore Madame Justice Saunders dismissed as irrelevant the views expressed by the Steering Committee of the Surrey Evangelical Churches, a priest of the Roman Catholic Church, a Muslim who is on the Surrey/Delta Management Committee of the BC Muslim Association, a leader of the Guru Nanak Sikh Gurdwara Society, and a leader of the Verdic Hindu Society. She decided that the Canadian Charter of Rights and Freedoms is the only basis for inculcating the highest possible morality among school children.

The case went to the BC Court of Appeal where the appeal court judges took what I would consider to be a more American approach. The following summary of their decisions is found on the Centre for Cultural Renewal website:

The unanimous Court rejected the claimant's interpretation of what it means for the School Act to require that all "schools must be conducted on strictly secular and non-sectarian principles." "Secular", considered in light of the history of the School Act, is a pluralist principle; its purpose is to exclude the inculcation of any particular sectarian religious doctrine in schools, so as not to promote or discourage any particular form of religious belief.

The Court distinguished between religious doctrine and the moral convictions that may flow from reflection on that doctrine. Reflection on religious experience is only one possible source of moral beliefs. Many people do not accept the authenticity of any religious experience, and their moral positions are derived from other sources. The law, however, is not concerned with the sources of morality; "a religiously informed conscience should not be accorded any privilege, but neither should it be placed under a disability."

And again, "moral positions must be accorded equal access to the public square without regard to religious influence." The Court thus unanimously rejected the Chambers judge's holding that moral decisions influenced by religion are excluded by the School Act. To accede to this position would make "religious unbelief a condition of participation in the setting of the moral agenda" and "would negate the right of all citizens to participate democratically in the education of their children in a truly free society" (http://www.culturalrenewal.ca).

The Supreme Court of Canada, however, overturned the decision of the BC Court of Appeal, although it did not quite so far as Madame Justice Saunders. It agreed that the School Act's reference to secularism did not mean that religious considerations could never play a part in a school board's deliberations, but took the position that the board must promote respect and tolerance for all the diverse groups it represents.

Why am I bringing up a public education case in a column devoted to life issues such as abortion and euthanasia? Well it's just my opinion, but I sense that the type of reasoning evident in Justice Saunders' position has spilled over into government-supported activities in other arenas, including the provision and withdrawal of charitable status.

Ms Clinton's views on the provision of federal funding for faith-based charitable activities are consistent with U.S. Supreme Court decisions; e.g., Rosenberger v. University of Virginia, U.S. (1995), per Scalia, J.

1. When the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes.
2. When the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.
3. The government is not required to subsidize the exercise of fundamental rights such as the freedom of speech.
4. However, if the government chooses to expend funds to "encourage a diversity of views from private speakers", instead of speaking itself or subsidizing transmittal of a message it favors, "viewpoint-based" restrictions are not permitted.

There appear to be times, however, when Canadian government bodies take a much narrower view. I am thinking here the decision of Canada Customs and Revenue to annul the charitable registration of the Hazelton Pro Life Society in September 2000. What follows is a sample of the reasoning used as the feds came to their decision. Compare what follows with what I recorded above concerning the prevailing legal view in the U.S.

An annulment of an organization's status as a registered charity is a procedure that we may use when it appears than an organization has been registered in error. We consider that the Charity's case falls under this situation because the Charity's objects evidence its bias toward a pro-life side of the debate on abortion.

The courts have held that advancement of education in the charitable sense means the training of the mind, advancing the knowledge or abilities of the recipient, improving a useful branch of human knowledge through research, and raising the artistic taste of the community. The advancement of education category does not, however, extend to the dissemination of information when such information is designed to persuade the public to adopt a certain attitude of mind concerning a controversial socio-political issue, such as abortion or euthanasia.

The courts have established that activities that are designed essentially to sway public opinion on a controversial social issue are not charitable, but are political is the sense understood at law.

Revenue Canada takes the position that the only legitimate kind of education is one free of any preferences--a sort of "worldpoint-neutral" approach, if such a thing could actually exist. It seems to me that were it to be applied evenly across educational sectors, then not only would pro-life organizations be in big trouble, but so would any government-funded independent schools, whether elementary, secondary, or post-secondary.

The Government of Alberta, for instance, would have to take away the full funding given to the large Roman Catholic school boards in that province that put up billboards urging the public to place students in their classrooms where Christ is alive and well. The same would be true for the large number of partially funded Catholic, Evangelical, Lutheran and Christian Reformed university colleges that promote their faith-based approach to education. Here in BC the provincial government would have the same problem with Jewish, Sikh and other faith-based schools they now partially fund. All of these schools have charitable status as well, of course.

The folks over at Planned Parenthood Canada aren't taking any chances. While no one would would likely call that organization worldview-neutral or unbiased, they attempt to hit the right note with Revenue Canada lest they suffer the same fate as the Hazelton Pro-Life group. They decry, for instance, fraudulent counseling centres that, among other things, make moral or religious judgments. They accept funding only from non-religious/moral sources. They have no respect for biased or inaccurate facts such as abstinence-based education. They criticize those who are anti-abortion.

I guess that they would have no use for Hillary Clinton either. After all, she is anxious to promote her views on abortion and sexual abstinence and have the government support them financially. No educator she.

I think that you sense my leanings here. I will explore them further in my next post.