Religion Versus the Charter

Canadians are proudly multicultural. Along with publicly funded health care, multiculturalism has become part of the sticky stuff of Canadian identity. Section 27 of the constitution, the Canadian Charter of Rights and Freedoms, provides that the charter “shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.”

Canada is unique among western democracies in its constitutional commitment to multiculturalism – a commitment that has worked extraordinarily well in practice. In our large cities, many cultures live peacefully with one another. One need only watch World Cup soccer in Toronto to testify to the city’s cultural diversity. Bystanders are welcomed and invited to join Ghanaians, French, Italians, Portuguese and Koreans, who take to the streets to wave flags in celebration. At its best, multiculturalism in Canada is inclusive, rather than exclusionary.

Despite extraordinary successes, the Canadian commitment to multiculturalism is being tested in unexpected ways. A resurgence of orthodoxy in Christianity, Islam and Judaism is sharpening lines of division between “them” and “us.” Canadians are uncertain about what limits, if any, there are to embedding diverse religious as well as cultural traditions within the Canadian context. We know pretty well what the “multi” in multicultural means, but are much less confident about “culture.” Does culture in Canada mean just a respect for pluralism and difference? Or, is there more? Have we produced a broader set of shared values that must, at some point, bump up against the diversity and difference that we celebrate as an important part of who we are?

There is a sniff of smugness in our celebration of our successes as a multicultural society. That smugness, a culturally sanctioned political correctness, is becoming less acceptable as real divisions creep into the debate about cultural and religious difference. How far can respect for difference go? When does it constrain freedom of expression? That issue boiled over when a Danish newspaper published cartoons that Muslims considered defamatory. Anti-Semitic cartoons have provoked similar debates. Does freedom of expression permit one group to insult and stereotype another? And when does stereotyping subtly become incitement to hatred?

These questions are not important if multiculturalism is largely restricted to the celebration of song, dance, literature, language and food. It is this kind of celebration that is the stuff of the official multiculturalism policy in Canada’s large cities. On one July afternoon in Toronto, for example, residents could choose between the Corso Italia Toronto Fiesta and Afrofest.

We are on far more difficult terrain when we ask more serious questions about traditions of the church – and synagogue and mosque – and the state. How committed are we in Canada to the secularization of public space? Do we welcome multiple religious symbols in public squares in December or do we ban them all? How far can religious practice and celebration extend into public space? To what extent will the state, in the service of the freedom of religion, continue to allow churches, synagogues and mosques to uphold policies that have an impact on the fundamental rights of Canadians? And can public officials refuse to perform certain duties because of private religious beliefs? To the surprise of many Canadians who come from quite different ends of the political spectrum, the relationship between equality rights and the right to freedom of religion is now on the public agenda.

In Canada, we would not think of enforcing restrictions against Hebrew skullcaps, Christian crosses or Muslim hijabs in our public schools. On the contrary, we celebrate almost everyone’s religious and national holidays. Where we are reluctant to go, however, is the conflict between the universal human rights that we treasure and different religious and cultural traditions. One obvious fault line – one that we tiptoe around – is the rights of women in different religious and cultural traditions in our midst.

Women in Canada are guaranteed equal treatment and an equal voice in the determination of our shared vision of the common good. We respect rights and we respect diversity, but at times the two compete. How do we mediate these disputes? What to do about private religious schools, for example, that meet government criteria by teaching the official curriculum but segregate women in separate classrooms? Should universities make space available to student groups that segregate women in worship? The University of Toronto allows religious organizations to determine how they use the space they are given for prayer. Currently, Jewish and Islamic services separate men from women in religious services held on campus. McGill University in Montreal, by contrast, maintains that as a non-denominational university, it is not obligated to provide prayer space for any religious group.

These questions are not abstract, but very personal to me. When I challenged my rabbi recently about his long-standing refusal to give women in my congregation the right to participate fully and equally in religious services, he argued: “I have not taken the position of ‘separate but equal,’ although I believe that a case can be made for this perspective. I have not argued for a fully egalitarian expression of Judaism, although I believe that a case can be made for this perspective. Instead, I have pressed for increased inclusion.”

Indeed, under his leadership our congregation now permits a greater degree of involvement for women in daily services, in public readings and in leading parts of the liturgy. These are far more than cosmetic changes, but to me, as significant as these changes are, they are not enough. Women are still not counted as part of the 10 people who must be present before prayers can begin. Only men count. I have had the extraordinary experience of sitting in a chapel and watching the leader of prayers count the men in the room, his eyes sliding over me as he counted. For all intents and purposes, not only did I not count, I was invisible.

Contrary to my rabbi, I do not think that any argument at all can be made for separate but equal treatment. This kind of argument has a long and inglorious history of discrimination that systematically disadvantages some part of a community. Nor is it obvious why greater inclusion should be capped short of full status, where women count as equals in constituting a prayer group. What principle is at work here? Even though the charter strictly applies only to public space, I take its spirit and its values seriously.

My religious obligation clashes openly and directly with values that I hold deeply as a Canadian. Fortunately, there are Jewish congregations in Toronto that are fully egalitarian. My cultural and religious community is sufficiently pluralistic that I can choose among a wide variety of options. A resolution of my personal dilemma is available to me – I canvote with my feet – but the issue is public as well as private.

These religious institutions that systemically discriminate against women are recognized, at least implicitly, by governments. They enjoy special tax privileges given to them by governments. Religious institutions do not pay property tax and most receive charitable status from the federal government. If religious institutions, for example, are able to raise funds more easily because governments give a tax benefit to those who contribute, are religious practices wholly private even when they benefit from the public purse? Are discriminatory religious practices against women a matter only for religious law, as is currently the case under Canadian law which protects freedom of religion as a charter right? Or should the equality rights of the charter have some application when religious institutions are officially recognized and advantaged in fundraising? Does it matter that the Catholic Church, which has special entitlements given to it by the state and benefits from its charitable tax status, refuses to ordain women as priests?

How can we in Canada, in the name of religious freedom, continue furtively and silently to sanction discriminatory practices? This issue was at the core of the debate in Ontario about Shariah law and Orthodox Jewish courts within the framework of state-sanctioned arbitration. I have deliberately chosen a personal issue – the issue of women’s participation in religious services in my own synagogue – to open up this difficult discussion of the desirable balance between the right to freedom of religion and other charter rights. Some would urge silence and patience until a new social consensus emerges, until we rebalance. Opening difficult conversations too early can fracture communities, inflict deep wounds and do irreversible damage to those who are most open to experimentation. In my own congregation, I have been counselled for the last five years to be patient. Give it time, I’m told, and the synagogue will become fully egalitarian.

I find it hard to be patient into the indefinite future, with no commitments from my religious leadership. I worry that change will stall unless we keep a civil but difficult conversation going. There is no question that there is a conflict between equality rights, on the one hand, and the right to freedom of religion, on the other. The law recognizes that conflict, but we need to ask hard questions about the appropriate balance. If I am expected to be patient, almost endlessly patient, then religious leaders must be cognizant of the responsibilities of their organizations that receive charitable status and public benefit to engage with Canadian culture as it is expressed in our most fundamental laws.

Janice Gross Stein is the Belzberg Professor of Conflict Management and director of the Munk Centre for International Studies. This article is adapted from a longer essay about multiculturalism that appeared in the September issue of the Literary Review of Canada.