Secularism and Freedom of Conscience

SECULARISM AND FREEDOM OF CONSCIENCE

SECULARISM AND FREEDOM OF CONSCIENCE

jocelyn maclur e and char les tay lor

Translated by Jane Marie Todd

h a r va r d

u n i v e r s i t y

p r e s s

Cambridge, Massachusetts, and London, England 2011

Copyright © 2011 by the President and Fellows of Harvard College all r ights reserved Printed in the United States of America Originally published as Laïcité et liberté de conscience by Les Éditions du Boréal, Montreal, Canada, 2010. Library of Congress Cataloging-in-Publication Data Maclure, Jocelyn, 1973– [Laïcité et liberté de conscience. English] Secularism and freedom of conscience / Jocelyn Maclure and Charles Taylor ; translated by Jane Marie Todd. p. cm. Includes bibliographical references (p. ) and index. ISBN 978- 0- 674- 05865-1 (hardcover : alk. paper) 1. Secularism. 2. Freedom of religion. 3. Liberty of conscience. I. Taylor, Charles, 1931– II. Title. BL2747.8.M32313 2011 211'.6—dc22 2011016266

CONTENTS

Introduction: Secularism Today

1

PART 1

7

SECULARISM

1. Moral Pluralism, Neutrality, and Secularism

9

2. The Principles of Secularism

19

3. Regimes of Secularism

27

4. Public Sphere and Private Sphere

36

5. Religious Symbols and Rituals in the Public Space

41

6. Liberal-Pluralist Secularism: The Case of Quebec

53

FREEDOM OF CONSCIENCE

61

7. The Legal Obligation for Reasonable Accommodation

65

PART 2

contents

8. Are Religious Beliefs “Expensive Tastes”? Choices, Circumstances, and Individual Responsibility

69

9. The Subjective Conception of Freedom of Religion and the Individualization of Belief

81

10. Does the Legal Obligation for Accommodation Favor Religion? Religious and Secular Convictions of Conscience 11. The Reasonable Limits to Freedom of Conscience

85 100

Conclusion: The Future of Secularism

105

Notes

111

Acknowledgments

135

Index

137

SECULARISM AND FREEDOM OF CONSCIENCE

INTRODUCTION Secularism Today

One of the most important challenges facing contemporary societies is how to manage moral and religious diversity. The question of “reasonable accommodations” has stirred passions in Quebec since 2006. It goes without saying that that corner of the country is not alone in its obligation to take up such a challenge. Canada as a whole has been grappling with sensitive issues, such as private arbitration based on the Sharia in matters of family law and the legal status of polygamous marriages. Elsewhere in the world, France has weathered its headscarf crises, and, more recently, President Nicolas Sarkozy’s defense of “positive secularism” has launched anew the debate on the relation between the political and the religious. On the heels of the London bombings of July 7, 2005, Great Britain turned its attention to the

secular ism and freedom of conscience 2

integration into British society of Muslim immigrants and their children. The pillars of Dutch multiculturalism were shaken when an extremist murdered the fi lmmaker Theo van Gogh in the name of Islam. Spaniards and Italians are pondering the relation between Catholic morality and issues of sexual ethics and bioethics such as abortion, assisted suicide, and the rights of same-sex couples. During the controversy surrounding published caricatures of Muhammad, Denmark was the epicenter of a worldwide debate on the limits of freedom of expression and the validity of antiblasphemy laws. In the United States the place of religious convictions in public debate and the meaning of the separation of church and state are the object of sustained and passionate reflection. In Turkey the highly republican secularist political system set in place in the early twentieth century under Kemal Atatürk is now being called on to become more open, ever since the AKP ( Justice and Development Party), led by practicing Muslims, was elected in 2002. Finally, Indian democracy, while demonstrating that religious tolerance is possible even in countries with an extraordinary religious and spiritual diversity, is from time to time put to the test by a large Hindu nationalist party—the BJP (Bharatiya Janata Party)—which seeks to found Indian national identity in the Hindu tradition, thus calling into question the separation between the Indian state and the majority religion.1 Beyond these strains and tensions there is a broad consensus that “secularism” is an essential component of any liberal democracy composed of citizens who adhere to a plurality of conceptions of the world and of the good, whether these conceptions be religious, spiritual, or secular. But what is secularism? Although it is generally agreed that

Introduction 3

secularism is a political and legal system whose function is to establish a certain distance between the state and religion, disagreements arise when it comes time to define the term more precisely. Some maintain that secularism is a clear and unequivocal principle that ought to be applied everywhere in the same way. In that view the resolution to the debate on the place of religion in the public space is fairly simple: apply the principle of secularism rigorously. That position assumes that secularism is easily defi ned by formulas such as “separation of church and state” and “neutrality of the state,” or by the distinction between “public sphere” and “private sphere,” religion being relegated to the latter. But the meaning and implications of secularism are simple only in appearance. Although these definitions all contain elements of truth, none alone exhausts the meaning of the term. Each includes gray zones and tensions, sometimes even contradictions, which need to be clarified if we are to determine what the imperative of state secularism entails. Secularism is complex because it is made up of a set of moral aims and institutional arrangements. And though recent work in the social sciences, law, and philosophy has made major advances possible in our understanding of secularism as a mode of governance, we shall argue that an adequate conceptual analysis of the constitutive principles of secularism is still lacking, and we shall attempt to remedy that gap. The objective of this book, however, is not solely to propose a conceptualization of secularism that we find more adequate. We also wish to demonstrate that a more precise conceptualization allows for a better grasp of the options available to societies facing dilemmas associated with how to manage moral and religious diversity,

secular ism and freedom of conscience 4

whether these concern the appropriate relationship between the majority religion and public norms and institutions, the legitimacy of demands for accommodation based on religious beliefs, the place of religious convictions in public deliberations, or the relation between freedom of conscience and freedom of religion. We shall therefore rely on the conceptualization proposed in Chapters 1 and 2 to reflect on the ethical and political disagreements related to the place of religion in the public space. We shall argue that respect for the moral equality of individuals and the protection of freedom of conscience and of religion constitute the two major aims of secularism today. Nevertheless, the meaning and implications of the principles of equal respect and freedom of conscience can be understood in different ways. Do moral equality and freedom of conscience justify, in certain cases, that accommodation measures or exemptions be granted to certain people so that they may practice their religion? Do such accommodations constitute preferential treatment incompatible with an adequate understanding of social justice? And if religious beliefs do sometimes justify practices of accommodation, what about nonreligious beliefs? How, in other words, is equal treatment of religious and nonreligious people to be assured? Must “conscientious convictions,” whether religious or secular, be treated like the other personal preferences, or must a special moral and legal status be attributed to these convictions? How should the courts interpret the principle of freedom of conscience and of religion? The second part of this book is devoted to such questions. We shall maintain throughout that secularism must at present be understood within the broader framework of the diversity of beliefs

Introduction 5

and values that citizens embrace. It is only quite recently that the model of a political society founded, on one hand, on an agreement about basic political principles and, on the other, on respect for the plurality of philosophical, religious, and moral perspectives adopted by citizens has taken root as the model most likely to lead to just and sufficiently harmonious coexistence. Of course the paradigm of religious tolerance, which at the beginning of the modern period came to foster peace in a Europe stricken by religious confl icts, prepared the way for that type of pluralist society. But for a long time religious tolerance went hand in hand with the exclusion or marginalization of certain groups— Catholics in England and the United States, for example—and with the attribution of a preferential status to religion vis-à-vis a secular conception of the world. Conversely, secularism has sometimes been conceived as a resolutely antireligious position, as, for example, in the former Soviet Union and in France at certain times in its history. Collectively, we still have a great deal to do to understand how social justice and political unity can be achieved in societies riven by profound—and, insofar as it is possible to judge, irreducible— philosophical differences and disagreements. We wish to reflect here on the core principles that may allow social cooperation in societies marked by deep diversity, on the institutional implications of these principles, and on the ethos or ethic of citizenship most likely to support these norms and institutions.

part one

SECULARISM

1 MORAL PLURALISM, NEUTRALITY, AND SECULARISM

The relationship between political power and religions in modern liberal democracies is complex and varied. Such democracies, even those that continue to recognize an official church—often in a mostly symbolic capacity—live under what can be called a “regime of secularism.” In a society that is both egalitarian and diverse, the state must be separate from the churches, and political power must be neutral toward religions. The establishment of a strong organic link between the state and one religion, as in the tradition of Christendom, would make members of other religions and of those professing no religion into second-class citizens. The democratic state must therefore be neutral or impartial in its relations with the different faiths. It must also treat equally citizens who act on religious beliefs and those who do not; it must, in other words, be neutral in relation to the different worldviews and conceptions of the good—secular, spiritual, and

secularism 10

religious—with which citizens identify. Religious diversity must be seen as an aspect of the phenomenon of “moral pluralism” with which contemporary democracies have to come to terms. “Moral pluralism” refers to the phenomenon of individuals adopting different and sometimes incompatible value systems and conceptions of the good.1 Tolerating the plurality of conceptions of the world and life plans would be problematic if we had access to an uncontroversial, overarching perspective that allowed us to hierarchize or orga nize the different points of view espoused by citizens. But what perspective could claim that title today? Moral pluralism is one of the central concerns of contemporary political philosophy because it lies at the heart of the most profound and complex disagreements existing among citizens. Most of the time, disagreements about scientific advances in the realm of genetics, the teaching of religion in the schools, or the state’s intervention in the economy are rooted in divergent value systems or conceptions of the human being. What John Rawls called “the fact of reasonable pluralism” has its origin in the recognition of the limits of rationality, its inability to decide the questions of the ultimate meaning of existence and the nature of human fulfi llment in a decisive way. The recognition of the indetermination and fallibility of human reason when faced with the question “What is a worthwhile life?” led liberal philosophers such as John Locke and John Stuart Mill to defend the principle of the sovereignty of individual conscience or the “moral autonomy” of the person.2 The state recognizes the individual agent’s ultimate authority over the set of beliefs that will allow him or her to interpret the world and his or her place in it and to exercise the faculty of judgment

Moral Pluralism, Neutrality, and Secularism 11

when facing dilemmas of a moral nature or those related to his or her identity. Rather than impose a representation (religious or secular) of the world and the good, the state seeks to favor the development of individuals’ moral autonomy and to protect their freedom of conscience. And as Rawls pointed out, we should not be surprised that, in societies that encourage the development of the rational faculties and that establish institutions to protect freedom of thought, conscience, and expression, individuals come to adopt different conceptions of what a life worth living consists of.3 The question of secularism must therefore be approached within the broader problematic of the state’s necessary neutrality toward the multiple values, beliefs, and life plans of citizens in modern societies. That requirement of neutrality must be further clarified, however. A liberal and democratic state cannot remain indifferent to certain core principles, such as human dignity, basic human rights, and popu lar sovereignty. These are the constitutive values of liberal and democratic political systems; they provide these systems with their foundations and aims. Although these values are not neutral, they are legitimate, because it is they that allow citizens espousing very different conceptions of the good to live together in peace.4 They allow individuals to be sovereign in their choices of conscience and to defi ne their own life plan while respecting others’ right to do the same. That is why people with very diverse religious, metaphysical, and secular convictions can share and affirm these constitutive values. They often arrive at them by very different paths, but they come together to defend them. The presence of what Rawls calls an “overlapping consensus” about the basic public

secularism 12

values is the condition for the existence of pluralist societies. 5 A Christian, for example, will be able to defend fundamental rights and freedoms by invoking the idea that the human being was created in God’s image; a Kantian rationalist will say that it is necessary to recognize and protect the equal dignity of rational beings; a utilitarian will maintain that one must seek to maximize the happiness of sentient beings capable of both plea sure and pain; a Buddhist will invoke the core principle of ahimsa, nonviolence; and an indigenous person or deep ecologist, referring to a holistic conception of the world, will maintain that living beings and natural forces stand in a relation of complementarity and interdependence and that, consequently, each of them, including human beings, must be granted equal respect. All of them agree on the principle, even though they cannot reach an agreement about the reasons that warrant it. The challenge of contemporary societies is to ensure that everyone comes to see the basic principles of political association as legitimate, based on his or her own perspective. As a result, a state that embraces these common political principles cannot itself adopt any of the “core or meaning-giving beliefs and commitments”—which are multiple and sometimes difficult to reconcile—that citizens espouse. By the terms “core or meaning-giving beliefs and commitments” we understand the reasons, evaluations, or grounds stemming from the conception of the world or of the good adopted by individuals that allow them to understand the world around them and to give a meaning and direction to their lives. It is in choosing values, hierarchizing or reconciling them, and clarifying the projects based on them that human beings manage to structure their

Moral Pluralism, Neutrality, and Secularism 13

existence, to exercise their judgment, and to conduct their life—in short, to constitute a moral identity for themselves.6 Core beliefs and commitments, which we will also call “convictions of conscience,” include both deeply held religious and secular beliefs and are distinguished from the legitimate but less fundamental “preferences” we display as individuals. It is likely that most individuals rely on motivations that remain implicit to a greater or lesser degree and, especially, that these motivations are not part of a complete and encompassing system of religious or secular convictions. Others, however, do refer to more totalizing systems. But whether core convictions are implicit or explicit, systematized or not, they occupy a preponderant role in a person’s life. It is in referring to these beliefs and commitments that we make the important decisions of our lives. In a society where there is no consensus about religious and philosophical outlooks, however, the state must avoid hierarchizing the conceptions of the good life that form the basis of citizens’ adherence to the basic principles of their political association. In the realm of core beliefs and commitments, the state, to be truly everyone’s state, must remain “neutral.” This implies that the state should adopt a position of neutrality not only toward religions but also toward the different philosophical conceptions that stand as the secular equivalents of religions. In fact, a political system that replaces religion with a comprehensive secular philosophy as the foundation of its actions makes all the faithful members of a religion into second-class citizens, since these citizens do not embrace the reasons and evaluations enshrined in the officially recognized philosophy. In other words, that political system replaces

secularism 14

established religion, as well as the core beliefs that define it, with a secular but antireligious moral philosophy, which in turn establishes an order of metaphysical and moral beliefs. The temptation to make secularism the equivalent of religion is generally stronger in countries where secularism came about at the cost of a bitter struggle against a dominant religion; think, for example, of the Catholic church of Restoration France or of Islam in the former caliphate of Turkey. It may be because of the fairly widespread sense that secularism was achieved in Quebec in a pitched battle against the Catholic church that some Quebecers today are sympathetic toward a certain version of French and Turkish secularism. That form of secularism takes pride in its neutrality toward the different religions but does not adopt a true position of neutrality at the level of conceptions of the good. On the contrary, in its most radical form it appeals to an “independent morality” founded on the principles of reason and on a particu lar conception of human nature.7 That type of political system replaces established religion with a secularist moral philosophy. To borrow the expression of Jean-Jacques Rousseau, such a moral and political philosophy is a “civil religion.” The France of the Third Republic, as conceived by the Radicals of the late nineteenth and early twentieth centuries, is an example of a republican political system founded on a civil religion. Marcel Gauchet has shown how the French philosopher CharlesBernard Renouvier understood the foundations of the actions of the Third Republic Radicals in their struggle against the church. According to Renouvier, the state was supposed to be “moral and instructive,” since it had “the cure of souls as surely as any church or community,

Moral Pluralism, Neutrality, and Secularism 15

but in a more universal capacity.” In order not to be under the church’s domination, it was the duty of the state to adopt “a morality independent of all religion,” one based on freedom, and to exercise a “moral supremacy” over all religions. To ensure that supremacy, the state’s morality had to possess a more robust foundation than that offered by utilitarian and sentimentalist moral theories. It needed a “rational theology,” akin, for example, to the moral philosophy of Kant. 8 But in view of our previous argument about the necessary neutrality of the state in relation to conceptions of the good life, it is problematic to replace the religious foundations for peaceful coexistence with an all-encompassing secular philosophical conception, since the underlying view of the world and of human nature is not liable to be shared by all citizens, some of whom may still be religious. The crux of the matter is that citizens come together, on the basis of their own perspective, around a common set of principles that can ensure social cooperation and political stability. Peaceful coexistence will be based not on the secular equivalent of a religious doctrine but, rather, on a range of values and principles that can be the object of an overlapping consensus. The aim of relying on common public values is to ensure the moral equality of citizens so that, potentially, they can all embrace the state’s broad orientations on the basis of their own conception of the good. This argument reminds us that we must avoid confusing political secularization (laïcisation) and social secularization (sécularisation). Although that distinction must be qualified in several ways, we may say that political secularization is the process by which the state affirms

secularism 16

its independence from religion, whereas one of the components of social secularization is an erosion of the influence of religion in social practices and in the conduct of individual lives.9 Whereas political secularization finds its expression in positive law and public policies, social secularization is a sociolog ical phenomenon embodied in people’s conceptions of the world and modes of life. In accordance with the argument for the state’s necessary neutrality toward conceptions of the good and convictions of conscience, the state must seek to become politically secular but without promoting social secularization. With that said, it is clear that such neutrality on the state’s part will not impose an equal burden on all citizens. The liberal state, for example, defends the principle that individuals are to be considered autonomous moral agents, free to define their own conception of the good life. In the schools, therefore, the state will favor the development of students’ critical autonomy. In exposing students to a plurality of worldviews and modes of life, the democratic and liberal state makes the task more difficult for parents seeking to transmit a particu lar order of beliefs to their children and even more difficult for groups wishing to shield themselves from the influence of the larger society in order to perpetuate a style of life based more on respect for tradition than on individual autonomy and the exercise of critical judgment. The state’s neutrality is, therefore, not complete.10 That choice of certain basic values is constitutive of liberal democracies. In this book we do not so much call into question that choice as raise awareness that, by definition, the democratic and liberal state’s neutrality cannot be absolute. In its neutrality toward citizens’ systems of beliefs and values, the state defends their equality and their

Moral Pluralism, Neutrality, and Secularism 17

freedom to pursue their own aims. The state thus takes the side of equality and autonomy, allowing citizens to choose their life plan and mode of life. As a result, believers and atheists alike can live in accordance with their convictions, but they cannot impose their conceptions of the world on others. Stepping back a bit, we fi nd that the ideal of a society in which citizens arrive at an “overlapping consensus” about the basic political principles, despite the differing conceptions they embrace regarding what a successful life is, has appeared only recently in history. That model is clearly distinguishable from the type of society where the seeds of social unity are found in a common religion and in an agreement about life’s ultimate meaning and aims.11 That requirement for unanimity is perhaps most clearly expressed in the terms of the religious peace reestablished in Germany after the Protestant Reformation in the sixteenth century: cujus regio, ejus religio. The people’s faith must be the same as that of the prince. Any dissent is viewed as undermining the legitimacy of the state and its capacity to ensure the country’s stability and unity. The shift from one type of unity to another did not come about easily. Non- Christian political systems, in some cases officially atheistic ones, have sought to found national unity on a secular philosophy behind which all citizens had to rally; think, for example, of Jacobinism and of certain Communist or nationalist regimes. In such cases religion was done away with, but the premise of the need for a common worldview remained solidly in place. The model that bases the unity of the political community on the adherence of citizens to common political principles, despite their

secularism 18

differences about the underlying reasons for them, is radically different.12 Such a society is aware not only that its unity does not lie in unanimity about the meaning and goals of existence but also that any efforts in the direction of such a uniformization would have devastating consequences for social peace. All Western societies have had to learn to fi nd the mainsprings of their unity elsewhere than in philosophical unanimity. That shift is not without its difficulties, and the necessity for it is sometimes contested, for example, in the United States and in some European countries, where representatives of the political Right advance the view that only a return to a lost moral unity can counter the degeneration of national identity they apprehend. It does not seem an overstatement to say that, before the 1960s, Francophone Quebec embodied that model of Christendom to a certain degree. Although no church was established by law, the powerful current of French- Canadian Catholic nationalism acted as a common vision behind which the collectivity was supposed to unite, and that unity was seen as a necessary condition for the survival of French- Canadian culture. The Catholic religion was a fundamental marker of the nation’s identity. That current was forcefully contested by those who prepared the way for the Quiet Revolution, but, once again, the premise that national unity requires unanimity regarding collective aims has continued to exert a certain hold on people’s minds.

2 THE PRINCIPLES OF SECULARISM

Secularism, then, must be understood within the context of the more general ideal of neutrality, to which the state must aspire if it wishes to treat citizens fairly. It is one of the modalities of the system of governance allowing democratic and liberal states to grant equal respect to individuals with different worldviews and sets of values. But what, more precisely, is secularism? That notion cannot be grasped through simple formulations such as “separation of church and state,” “the neutrality of the state toward religions,” or the “privatization of religion,” though all these formulations contain a share of truth. Rather, secularism rests on a plurality of principles, each fulfi lling par ticu lar functions. It is important to understand that secularism is composed of a set of values and of means, or “operative modes,” which are so intimately linked that it is difficult to separate them. In our opinion, one of the

secularism 20

sources of the impasses in debates both theoretical and practical on secularism is that the aims of secularism are not distinguished clearly enough from the operative modes. As a result, what belongs to means comes to assume a status equivalent to or even greater than that of the aims the secular state is seeking to achieve. In our view, secularism rests on two major principles, namely, equality of respect and freedom of conscience, and on two operative modes that make the realization of these principles possible: to wit, the separation of church and state and the neutrality of the state toward religions. The operative modes of secularism are not merely contingent means that can be disregarded. On the contrary, they are indispensable institutional arrangements. Nevertheless, they can be interpreted in different ways and can prove to be relatively permissive or rather restrictive with respect to religious practice. At the level of principles, a democratic political system recognizes the equal moral value or dignity of all citizens and therefore seeks to grant them all the same respect. Realizing that aim requires the separation of church and state and the state’s neutrality toward religious and secular movements of thought. On one hand, since the state must be the state for all citizens, and since citizens adopt a plurality of conceptions of the good, the state must not identify itself with one particu lar religion or worldview. It is for that reason that the state must be “separate” from religion. It must be sovereign within the fields of its jurisdiction. The fusion between political power and a religious or secular conception of the world makes those who do not espouse the state’s official doctrine into second-class citizens.1 On the other hand, the principle of equal respect requires that the state be “neutral” with respect to religions and other deep convictions;

The Principles of Secularism 21

it must not be biased for or against any of them. To grant equal respect to all citizens, the state must be able to justify to everyone the decisions it makes, which it will be unable to do if it favors one particu lar conception of the world and of the good.2 The reasons justifying its actions must be “secular” or “public,” that is, they must be derived from what could be called a “minimal political morality” potentially acceptable to all citizens. 3 Equality of respect is not the only aim of secularism, however. As Martha Nussbaum remarks, a state that significantly restricts the freedom of conscience of all citizens could still treat them all with an equal (lack of ) regard. 4 More importantly, a “difference-blind” conception of equality can end up preventing the free exercise of religion of the members of religious minorities. The aim of setting in place a secular state is therefore also to protect citizens’ freedom of conscience. In showing itself to be “agnostic” on the questions of the aims of human existence, the secular state recognizes the sovereignty of the person in his or her choices of conscience. Historically, conceptions of the world and of the good have been the object of profound disagreements, and nothing allows us to envision a change in that structural fact of modern life. Nothing leads us to believe that practical reason has the capacity to establish the truth of the matter with regard to the question of the ultimate aims of existence. 5 Rather than dictate to individuals a conception of the good, the secular state respects their freedom of conscience or moral autonomy, that is, their right to conduct their lives in light of their own choices of conscience. It will also seek to defend that freedom of conscience when it is illegitimately impinged upon, just as it defends the equality between women and men or freedom of expression.

secularism 22

It is from that standpoint that religious accommodations are sometimes justified. It becomes even more obvious that the aim of secularism is equal respect for citizens and the protection of freedom of conscience when the historical development of secularism in the West is taken into account. The principles of separation and neutrality came into being as a result of the bitter disappointments of single-faith political systems and were instituted with the aim of putting an end to religious wars. It was necessary to define the state no longer as an instrument in the hands of the Catholics or Protestants but as a common public authority in the ser vice of citizens of both faiths. The first steps toward neutrality, as hesitant and partial as they were, went hand in hand with the establishment of modes of religious tolerance that allowed a greater freedom in the exercise of previously banned faiths. The First Amendment of the United States Constitution stipulates that no law establishing a religion or prohibiting the free exercise thereof can be adopted by Congress. Similarly, the 1905 French law on laïcité established the separation of church and state while decreeing freedom of worship for every citizen. In both cases the aim of separation and neutrality was to ensure the equality of citizens and went hand in hand with the recognition and protection of individuals’ freedom of conscience and of religion. As Micheline Milot put it, secularism is “a (progressive) development of the political realm by virtue of which freedom of religion and freedom of conscience are guaranteed, in conformance with a will to establish equal justice for all, by a state that is neutral toward the various conceptions of the good life coexisting in society.”6 Secularism is

The Principles of Secularism 23

a political mode of governance based on two major principles— equality of respect and freedom of conscience—and on two operative modes—separation of church and state and the neutrality of the state toward religions and toward secular philosophical movements. Although some authors have rightly observed that secular regimes maintain a delicate balance between distinct principles, we believe that the ends and means of secularism have not been distinguished with sufficient clarity in the pertinent academic studies in the social sciences, law, and philosophy. For example, Nussbaum considers the U.S. model of secularism and freedom of conscience to be founded on six principles: equality, equal respect accorded to every person, freedom of conscience, accommodation, nonestablishment, and separation.7 In the Stasi report on the application of laïcité in France, the concept is presented as resting on three principles: freedom of conscience, equality of spiritual and religious choices in the eyes of the law, and the neutrality of the public authorities. 8 Both of these definitions have the merit of recognizing that secularism is based on a plurality of principles. A careful conceptual analysis, however, allows us to take a further step. Not all principles of secularism are of the same type. Equal respect and freedom of conscience are moral principles whose function is to regulate our behavior (or, in the case at hand, the state’s actions), whereas neutrality, separation, and accommodation could be called “institutional principles” derived from the principles of equal respect and freedom of conscience. To use an analogy, the separation of the executive, legislative, and judicial branches is not a moral principle. It is an indispensable institutional arrangement whose aim, as Locke and Montesquieu showed, is to safeguard the

secularism 24

freedom of citizens and to avoid tyranny. The value of “institutional principles” is derived rather than intrinsic; they are essential means toward the realization of properly moral ends. The complexity inherent in secularism can be better assessed by observing that it entails a set of ends and operative modes that can enter into conflict. In particular, tensions may arise between respect for moral equality and the protection of freedom of conscience and religion. A Muslim teacher who wears a headscarf in class may be viewed as compromising the neutrality of the public schools, which would be a derogation of the norm requiring that public institutions treat all citizens equally. Conversely, preventing the teacher from wearing a headscarf constitutes an infringement on her freedom of religion. How to reconcile the neutrality that public institutions must display and the respect for freedom of religion? The fact that two European countries where the case has arisen— Germany and England—resolved the question in different ways shows that this is a difficult call.9 It must, therefore, be recognized that, in certain situations, the ends and operative modes of secularism cannot coexist in perfect harmony; compromises favoring maximum compatibility between these two ideals must then be sought. Because secularism is not a single, simple principle, dilemmas are generated, and secular states must find ways to resolve them. That possibility of a confl ict between the constitutive principles of secularism seems to have escaped certain observers, however. The French philosopher Henri Pena-Ruiz, though aware that secularism is based on a plurality of principles, implies in his criticism of the notion of “open secularism” that secularism is a monolithic principle that simply needs to be applied correctly:

The Principles of Secularism 25

Secularism, let us recall, is the simultaneous affirmation of three values, which are also principles of political organization: freedom of conscience based on the autonomy of the person and of the private sphere; the full equality between atheists, agnostics, and the many kinds of believers; and a concern for universality in the public sphere, since common law should promote only the common interest of all. Thus understood, secularism is not about being opened or closed. It must quite simply exist, without any infringement of the principles that make it an ideal of concord, open to all without discrimination. The notion of open secularism is bandied about by those who, in reality, contest true secularism but dare not overtly oppose the values that define it. What could it mean to open up secularism if not to call into question one of its three constitutive principles, or even all three at the same time? You be the judge.10 Pena-Ruiz dodges the very real possibility that the principles of secularism may enter into confl ict with one another. Yet that structural reality is at the heart of the most sensitive dilemmas that secular states have to resolve. To prohibit a teacher from wearing the hijab, as we saw, enhances the appearance of neutrality of the institution of learning but restricts the teacher’s freedom of conscience and religion; or, it undermines the principle of equal opportunity by closing the door to a career by means of which she might have made her contribution to society. Whatever the accuracy of the defi nitions and

secularism 26

whatever the appropriateness and coherence of the principles selected, there will always be limiting cases that will be difficult to decide. We have thus chosen to characterize the set of political systems whose aim is to realize the principles of equal respect and freedom of conscience as “regimes of secularism.” This is a broad conception of secularism. Some researchers in the social sciences prefer to distinguish among the types of relationships between the state and the church by referring to systems of “establishment,” “separation,” and “association.” Within that typology, secularism is understood as a system of “separation.” But though in certain contexts these distinctions can be useful for casting into relief differences among political systems, they tend to conceal the fact that all liberal democracies seek, with greater or lesser success, to realize both aims of secularism and that all entail elements of “separation” from and “association” with the churches. The few Western countries that continue to recognize an official church (the United Kingdom and Denmark, for example) are very mitigated systems of “establishment” and seek to respect the principles of equal respect and freedom of conscience, whereas the political systems of “separation” (the United States and France, for example) in actuality grant forms of recognition to the churches. That is why we prefer to speak of “regimes of secularism,” which, even while setting their sights on the realization of both aims mentioned, deploy different forms of separation from and recognition of religions.11 Our conceptual choice is based on the ends of secularism as a political mode of governance rather than on its operative modes.

3 REGIMES OF SECULARISM

The world’s secular political regimes are generally categorized in terms of the relationship they maintain with religious practice. It will be said, for example, that the secularism is “rigid” or “strict” or, rather, more “flexible” and “open,” depending on how dilemmas are resolved when the principles and operative modes of secularism enter into confl ict with one another. A more rigid form of secularism allows greater restriction on the free exercise of religion, in the name of a certain understanding of the state’s neutrality and of the separation of political and religious powers. Conversely, an “open” secularism defends a model centered on the protection of freedom of conscience and of religion, as well as a more flexible concept of separation and neutrality. These could also be characterized as “republican” secular regimes versus “pluralist” or “liberal” ones. It is no doubt possible to arrange regimes of secularism along a continuum, from the most

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rigid and strict position to the most flexible and accommodating toward religious practice. Nevertheless, a state may adopt a more restrictive position on one issue and a more open one on another. France, for example, prohibits the wearing of “conspicuous” religious symbols in the public schools, but one often loses sight of the fact that 85 percent of the funding for private religious schools in France comes from the state (in Quebec it is 60 percent) and that the French state maintains and preserves Catholic and Protestant churches and Jewish synagogues built before the 1905 law on the separation of church and state; that the Catholic religious holidays of Easter, the Ascension, Pentecost, the Assumption, All Saints’ Day, and Christmas are legal holidays in France; and that a concordat granting privileges to the Catholic, Protestant, and Jewish religions is maintained in AlsaceMoselle. Separation and neutrality, as the example of France attests, are never fully realized in practice. If respect for the equal moral value of citizens and the protection of freedom of conscience are the ends of secularism, and if the separation between the political and the religious and the state’s religious neutrality are means that make it possible to achieve a balance between those ends, it follows that the most rigid conceptions of secularism, quicker to set aside protections for freedom of religion, sometimes come to grant a preponderant importance to the operative modes of secularism, which are elevated to the rank of values, often at the expense of its ends. The full separation between church and state, or the state’s religious neutrality, then assumes greater importance than respect for individuals’ freedom of conscience. Public debates on secularism, in fact, often focus more on the operative modes of secularism

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than on their ends. That could be called a “fetishism of means”: the separation of church and state and the state’s religious neutrality become values that must be defended at all cost rather than means that, though essential, are to be defined as a function of the ends they serve. Since confl icts between the “Two Swords” were pervasive in the Middle Ages, and since the state’s religious neutrality as well as the separation between church and state did not really materialize until the twentieth century, that importance granted to secularism’s means is understandable. But it makes it more difficult to rethink secularism through the lens of its new challenges, which are associated primarily with the conditions for managing contemporary moral and religious diversity in an equitable manner. In addition to the focus on institutional arrangements, there are other reasons a secular regime may choose to more tightly control the free exercise of religion. Societies may attribute different ends to secularism than those already indicated. For example, a regime of secularism may be more restrictive toward religious practice because it is given the mission of realizing two values besides equality of respect and freedom of conscience, namely, the emancipation of individuals and civic integration. A secular model may seek to promote the emancipation of individuals from religions and, therefore, the secularization or erosion of religious belief, or it may wish to consign religious practice strictly to the confines of private and associative life. To varying degrees, that conception of secularism defends a negative opinion about religion itself, seen to be incompatible with individuals’ rational autonomy. In such cases, secularism becomes an instrument to be used in the

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emancipation of individuals by means of a critique or marginalization of religion. For Pena-Ruiz, therefore, It is clear that secular emancipation cannot be limited simply to a secularization of public institutions. It requires making common cause with two sovereignties: that of the people over themselves, and that of the individual consciousness over its thoughts. Reason, a principle of autonomy, is the faculty of reflective thought that applies itself to all things, including the meaning of every particu lar cognition in one’s understanding of the world and in one’s conduct. Every man possesses reason as “natural light,” a potentiality to be cultivated, but no one can spark it in himself and realize it without a labor of thought that assumes the burden of its demands. That is why the positive raison d’être for the secular ideal is to establish publicly the conditions for enlightened judgment. It is not enough to disconnect the state from all theological custodianship. The citizenry must also be disconnected from the many custodians who may impose themselves on it, in civil society and in public political debate.1 The secular character of public institutions, from that standpoint, is not sufficient. Secularism must also liberate citizens from the influence of their “custodians.” The emancipatory mission entrusted to republican institutions is also emphasized by Régis Debray, who believes that “the Republic is freedom plus reason. . . . Democracy is what remains of a republic when you snuff out the light.”2

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That republican version is problematic in societies marked by a diversity of conceptions of the good life. In the fi rst place, the underlying idea that reason can perform its emancipatory function only if it is disengaged from all religious faith is open to dispute. There is every reason to think that people can make use of their reason in conducting their lives even while adhering to religious or spiritual beliefs. 3 In the second place, there is a very high risk that the value of emancipation will enter into confl ict with citizens’ moral equality and freedom of conscience. The secular state, in working toward marginalizing religion, adopts the atheist’s and the agnostic’s conception of the world and, consequently, does not treat with equal consideration citizens who make a place for religion in their system of beliefs and values. That form of secularism is not neutral toward the core convictions that allow individuals to give meaning and direction to their lives. Yet the state’s true commitment to individuals’ moral autonomy entails the recognition that individuals are sovereign in their choices of conscience and have the means to choose their own existential options, whether these be secular, religious, or spiritual. Some may believe that a more restrictive model of secularism is necessary in the ser vice of a second aim (in addition to respect for the equal value of persons and for freedom of conscience), namely, civic integration. “Integration” is here understood in the sense of an allegiance to a common civic identity and the collective pursuit of the common good. According to some, the interaction and cooperation among citizens required by civic integration call for the effacement or neutralization of the identity markers that differentiate citizens (including religion and ethnicity). The premise of that republican conception of integration is that the effacement of difference is a

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necessary prerequisite for integration and social cohesion. From that standpoint, schools are often portrayed as a “republican sanctuary.”4 Others, however, may agree with the idea that secularism ought to be in the ser vice of civic integration even while disputing the premise that the effacement of difference is a prerequisite for integration. According to that alternative point of view, dialogue, mutual understanding, and cooperation among the citizens of a diverse society require that the similarities and differences among them be acknowledged and respected. The development of a sense of belonging and of identification in diverse societies would then entail a “reasonable recognition” of differences rather than their consignment to the private sphere. That more liberal and pluralist conception of secularism still has the primary function of protecting citizens’ moral equality and freedom of conscience and of religion, but it also contributes secondarily to civic integration. As attested by the debates surrounding the report of the Stasi Commission in France and the law prohibiting the wearing of “conspicuous” religious symbols in the public schools that was adopted in its wake in 2004, 5 references to the values of emancipation and integration abound in the French public discourse on secularism. In it secularism is often presented as an essential identity marker of the French Republic. Nevertheless, though the law proscribing “conspicuous” religious symbols conforms to the logic of republican secularism, we must not think that it is typical of the French practice of secularism as it developed over the course of the twentieth century. In practice the French state has reached many compromises with the churches regarding the expression of faith, compromises that are

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rarely reflected in the dominant discourse on secularism. In fact the members of the Stasi Commission wrote in their report that “even while remaining a value at the heart of the republican pact, shared by all, [laïcité ] has never been a dogmatic construction. Applied empirically with attention to new sensitivities and the legacy of history, it is capable of striking a balance at crucial moments and of embodying the hopes of our society.”6 The dominant social discourse on secularism may make us lose sight of the fact that French courts have usually found that wearing religious symbols in the public schools is not incompatible with the principle of secularism, and that a prohibition on them constituted an impediment to freedom of religion.7 What is too often forgotten is that the 2004 law that prohibited the wearing of religious symbols in the public schools was justified in the name of public order and not in the name of secularism. “Today,” write the authors of the Stasi report, “the question is no longer freedom of conscience but public order.”8 The pressure exerted on Muslim girls, combined with the demands of a religious nature made on public institutions such as schools, hospitals, and prisons, persuaded the members of the commission that a law prohibiting the wearing of visible religious symbols in the public schools was necessary. Since the republic could not “remain deaf to the distress cry” of Muslim girls, and since the schools ought to remain for them “a place of freedom and emancipation,” it had become imperative for the French state to reaffirm its commitment to secularism and individual freedom. The question to be raised here is obviously what logical connection exists between the ban on wearing conspicuous religious symbols in the public schools and the protection of girls subject to undue pressures.

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In what ways does the law protect girls who are victims of harassment in their communities? How is that law likely to put an end to the unreasonable demands for accommodation in public institutions? What we know, in any event, is that the ban restricts the freedom of religion of Muslim, Jewish, and Sikh students who voluntarily wear visible religious symbols.9 It seems possible, therefore, to distinguish more precisely between two models or ideal types of secularism, namely, a “republican” model and a “liberal-pluralist” one. The republican model attributes to secularism the mission of favoring, in addition to respect for moral equality and freedom of conscience, the emancipation of individuals and the growth of a common civic identity, which requires marginalizing religious affi liations and forcing them back into the private sphere. The liberal-pluralist model, by contrast, sees secularism as a mode of governance whose function is to fi nd the optimal balance between respect for moral equality and respect for freedom of conscience. A liberal secular regime will not take exception to the mere presence of the religious in the public space and will accept the necessity of resorting to accommodations aimed at restoring equity or at allowing the exercise of freedom of religion, as long as the principle of equal respect is not compromised. A request for accommodation would not be legitimate if it obliged the state or public institutions to grant a greater value to members of a particu lar religion. The aim of liberalpluralist secularism is the optimal reconciliation of equality of respect and freedom of conscience.10 That distinction makes no claim to cover all the significant differences among regimes of secularism that states have set in place. The

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distinction appears useful to us, however, for apprehending the aims attributed to secularist political systems, as well as the many dilemmas having to do with the relationship between the state and religions, and with the meaning and limits of freedom of conscience and religion that contemporary democracies face.

4 PUBLIC SPHERE AND PRIVATE SPHERE

The champions of a republican conception of secularism generally defend the position that the exercise of religion must be contained within the limits of the private sphere. Although all individuals have the right to live according to their conscience in their private lives, the public sphere must be exempt from any manifestation of faith. That imperative is viewed as proceeding logically and necessarily from the separation of church and state. Yet an examination of that distinction between the public and the private, frequently presented as a clear response to the issues related to managing religious diversity, reveals a complexity that is often overlooked. The public-private distinction contains at least two major meanings, not to mention minor variants. The first sense of the predicate “public,” inherited from Roman antiquity, has to do with society as a whole, in opposition to what regards “private” citizens. In that sense

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we speak of the “public interest” or of the “republic”; the Latin expression res publica (the “public thing”) designates the state or government, which concerns itself with matters of common concern. We also speak of state corporations, such as the electric power company HydroQuébec, as “public” institutions. In principle, public institutions serve the common good. The second meaning of “public” comes to us from the eighteenth century: it designates what is open, transparent, and accessible, in opposition to what is secret or that to which access is restricted. One speaks of the “publication” of a book; information is made “public”; the library is “open to the public”; and so on. The public sphere in this sense is composed of places for discussion and exchange among “private” citizens.1 As a result, someone need not have a “public” office in the first sense of the term to participate in the “public” sphere in the second. The oft-heard rallying cry “Take religion out of the public space!” may therefore have two very different meanings. It may signify that public institutions in the first sense of the term must be neutral: the state and the institutions that embody it should not be identified with a particular religion or with religion in general. The “deconfessionalization” of the public schools in Quebec, begun in the 1960s, could be understood as proceeding from that imperative. The same requirement for neutrality could also be understood in a much broader manner: public spaces in the second sense must be exempt from any religious references. It is in light of that understanding that individuals could be prohibited from wearing visible religious symbols when they enter the public sphere (the street, businesses, parks,

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organizations of civil society, and so on). That much broader prohibition was imposed by the first Turkish republican government under Atatürk after World War I. The two senses of the word “public” are often combined when people express views in favor of “secularism.” Take the case of the French law prohibiting the wearing of the hijab and other visible religious symbols in the public schools, or the decision of the Constitutional Court of Turkey that invalidated the law, adopted in 2008 by the party in power, that allowed the hijab to be worn on university campuses. Attempts may be made to justify these mea sures with reference to the fi rst sense of the word “public.” Public schools and universities are institutions belonging to the state and, as such, they ought not to be identified with any particu lar religion. A possible reply is that wearing the hijab is an individual act of expression by a Muslim student and has no bearing on the institution, nor does it make that institution any more religious than it had been. Supporters of the law respond, however, by invoking the necessity for “republican spaces” to be exempt from any religious identity.2 At this point the word “public” has shifted toward its second meaning. Schools and universities are public places where individuals meet and interact with one another. The argument in favor of that law appeals to both senses of the word “public” without always clearly distinguishing between the different threads. That confusion tends to make us lose sight of the fact that there is an important difference between, on one hand, allowing a student to display a religious symbol in the public schools and, on the other, favoring a particular religion through public intervention. For example,

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we must contrast the act, by a student, of wearing a religious symbol to faith-based religion class or to the recitation of a prayer before the beginning of classes. The essential thing, if we wish to grant students equal respect and protect their freedom of conscience, is not to remove religion from the schools completely but, rather, to ensure that the school does not espouse or favor any religion. It is clear, for instance, that a faith-based educational system that favors Catholicism and Protestantism, as was the case in Quebec before the adoption of Law 95 in 2005, 3 violates the rule of the neutrality of public institutions. But does the fact that school is a public institution in the first sense of the term mean that, as a place for meetings and exchanges, it must be free from any presence of the religious? The two conceptions of secularism stand opposed on that question. In the liberal-pluralist view, the requirement of neutrality is directed at institutions and not at individuals. In the republican conception, individuals are also obliged to exercise self-restraint and display neutrality, by abstaining from displaying their faith when they frequent public institutions or, in the most radical view, when they enter the public sphere. That second position is particularly harsh for believers for whom belief and action cannot be neatly separated; for many believers, faith is a matter of practices and rituals at least as much as a matter of beliefs. The republican position, moreover, seems to assume a watertight barrier between individuals’ private and public lives and, as a result, between public and private spaces. But can that barrier actually be maintained? Consider the example of caregiving facilities. The decline of the extended family and the development of the welfare

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state have resulted in a situation where some people spend decisive moments of their intimate lives in the “public” spaces of hospitals, or in long-term care facilities, or in hospice care. These moments are usually marked by suffering and vulnerability, and they may include the end of life. At such times most people want to be surrounded by their loved ones and, for some, religious contemplation and rites remain indispensable. That is why the presence of chaplains and or multi-faith meditation rooms in hospitals (and in prisons and in the armed forces) is not seriously questioned. In fact the French law of 1905, even as it established the separation of church and state, determined that state-financed chaplaincies were to be set up in hospitals, the army, secondary schools, and prisons (article 2). The idea that religion could be “banished” from these spaces is morally suspect. The issues raised by that intertwining of private and public require sensible and sensitive solutions arrived at through dialogue among the parties concerned. In short, the public-private distinction turns out to be too general and indeterminate in many cases to allow us to assess the appropriate place of religion in the public space. There is also a vast space, often called “civil society,” lying between the state and private life, where a host of social movements and organizations, including some motivated by spiritual or religious convictions, will engage in debate on questions of public interest and will become involved in charitable or humanitarian causes. In societies where freedom of conscience, expression, and association prevails, religion quite simply cannot be contained within the strict limits of the home and places of worship.

5 RELIGIOUS SYMBOLS AND RITUALS IN THE PUBLIC SPACE

We believe, then, that a theory that more clearly distinguishes the moral principles grounding political secularism from the institutional arrangements that realize these principles is necessary from a conceptual point of view. The gain resulting from the theorization we have proposed is not of a strictly epistemic nature, however: it also has a normative dimension. Distinguishing between the types of principles constitutive of secularism will allow us to recognize that certain policies have the effect of diverting us from the realization of the ends toward a defense of the means. In addition, the aim of a liberal and pluralist conception of secularism is to aid us in regulating the ethical and political confl icts associated with managing the moral and religious diversity of contemporary societies. Although we do not think that the application of the theory alone can eliminate the complexity of par tic u lar cases and guide actors toward obvious and univocal

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responses, we do believe that it will allow us to better identify the ethical tensions present and that it offers criteria to facilitate the exercise of judgment. In other words the proposed conceptualization may prove to be a good guide or a productive heuristic for societies facing dilemmas that call into question the place of religion in the public space or citizens’ freedom of conscience. To illustrate the normative utility of the theory, let us examine one of the problems that gives contemporary democracies the most trouble, namely, the place of religious symbols in the public space. We will first consider state officials who wear religious symbols, and then we will move on to the place of religious symbols and rites in the public sphere.

The Wearing of Religious Symbols by State Officials

Secularism requires that there be no organic connection between the state and religion; the secular state must take its orders from the people through their elected representatives and not from religious communities. The state’s religious neutrality demands that public institutions favor no religion, not that the individuals who frequent these institutions privatize their religious affi liation. But what are the implications of the state’s religious neutrality for state officials, that is, for those who represent it and allow it to perform its functions? That issue does not pose any particu lar challenge to republican conceptions of secularism, according to which it is self-evident that state employees cannot display their religious convictions in the performance of their duties. In France and Turkey, therefore, it is believed

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that the principle of secularism justifies a prohibition on state officials wearing visible religious symbols. The matter is more difficult for liberal and pluralist models of secularism, which seek to balance, on one hand, a broad protection of freedom of conscience and of religion and, on the other, the equal respect due to all citizens, which requires the neutrality of public institutions. The reason most often mentioned for prohibiting state officials from wearing religious symbols is that these agents represent the state and must consequently embody the values it promotes. Since the state is in theory neutral toward citizens’ various religious affi liations, its representatives must exemplify that neutrality. At first sight that position seems reasonable and legitimate. As individuals, citizens are free to display their religious affi liations both in the private sphere and in the public sphere, understood in the broad sense. But as state officials, they must agree to embody or personify the state’s neutrality toward religions. For example, a state employee wearing a visible religious symbol might give the impression that he is serving his church before serving the state, or that there is an organic link between the state and his religious community, whereas a uniform rule prohibiting the wearing of such religious symbols avoids the appearance of a confl ict of interest. As Jacques Chirac said in his 2003 speech on secularism, “We must forcefully reaffi rm the neutrality and secularism of public ser vice. That of each public agent, who is in the ser vice of all and of the general interest, on whom the prohibition on displaying his own beliefs or opinions is imposed. That is a rule of our law, for no French person should be able to suspect that a representative of the

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public authorities is biased for or against him or her as a function of personal convictions.”1 Before we examine that argument more closely, it is important to remember that the prohibition on public officials wearing religious symbols bears a cost, namely, the restriction of the freedom of conscience and of religion of the persons concerned or that of equal access to jobs in the public sector. Although no right is absolute, a liberal democracy must always have strong reasons for interfering with fundamental rights and socioeconomic opportunities. Does the appearance of neutrality, which is the objective of the rule prohibiting the wearing of visible religious symbols by agents of the state, constitute a strong reason? Although the appearance of neutrality is important, we do not believe it justifies a general rule prohibiting public officials from wearing conspicuous religious symbols. What matters, above all, is that such officials demonstrate impartiality in the exercise of their duties. State employees must seek to perform the mission attributed by lawmakers to the institution they serve; their acts must be dictated neither by their faith nor by their philosophical beliefs but, rather, by the will to realize the ends associated with the position they hold. But why think that the person who wears a visible religious symbol is less liable to demonstrate impartiality, professionalism, and loyalty to the institution than the person who wears none? Why, in that case, stop at external manifestations of faith? Logically, should not state employees be required to renounce all convictions of conscience, thus instituting a modern version of the Ironclad Test Oath?2 That would obviously be absurd. It is unclear why we should think a priori that those who display their

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religious affiliation are less capable of sorting things out than those whose convictions of conscience are not externalized or are so in a less conspicuous manner (the wearing of a cross, for example). Why deny the presumption of impartiality to one and grant it to the other? Public officials must be evaluated in light of their actions. Do they display impartiality in the exercise of their duties? Do their religious beliefs interfere with the exercise of their professional judgment? It is possible to evaluate the neutrality of the actions performed by state officials without systematically restricting their freedom of conscience and religion. For example, when an employee wears a visible religious symbol and proselytizes at work, what would need to be proscribed is the proselytism and not the wearing of the religious symbol, which is not in itself an act of proselytism. Regardless of public officials’ competence, citizens may be shocked at the sight of them displaying their religious affi liation. How to explain that reaction? Is it possible that, in many cases, it stems from a suspicion, or even an intolerance, of religion in general or of minority religions in particu lar? Should we restrict the free exercise of religion of certain citizens on that basis? In diverse societies in which a multiplicity of religions and relationships to religion exist in close proximity, we must, rather, place our trust in learning to peacefully coexist with mutual understanding and respect. And how can people become accustomed to the religious symbols with which the majority are not familiar if a certain number of key professions are closed to those for whom faith must be expressed through the wearing of such signs? Does not a stricter secularism run the risk of favoring social fragmentation rather than integration?

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Our position does not mean, however, that the wearing of all religious symbols by all public officials must be accepted. Rather, it implies that wearing a religious symbol should not be prohibited simply because it is religious. Other reasons may justify the prohibition, however. Here we come to the limits on freedom of religion, a question we will treat more thoroughly in Chapter 11. The wearing of a religious symbol must not interfere with the performance of one’s duties. A teacher, for example, could not wear a burqa or niqab in class and still adequately discharge her duties as a teacher. On one hand, teaching necessarily entails communication, and covering the face and body does not allow for nonverbal communication. On the other, one of the teacher’s missions is to contribute toward the development of the student’s sociability. It seems reasonable to think that wearing a full veil establishes too much distance between the teacher and her charges. In short, pedagogical reasons may be invoked to justify the prohibition of the burqa or niqab among teachers. 3 By contrast, the hijab does not prevent communication or socialization. Some maintain, however, that the fact that a teacher, who is in a position of authority, displays his or her religious affi liation, may confuse young pupils in the early primary grades who have not yet acquired the autonomy necessary to sort things out. That is a serious argument and would deserve consideration—though we cannot give it that here—in light of research on the stages of children’s cognitive development. But we would also have to take into account the fact that young people who are exposed at an early age to the diversity they will encounter outside of school may more easily be able to sort out the differences and will consequently be less quick to apprehend them as

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threats. Peaceful coexistence in a diverse society requires that we learn to find normal a range of identity-related differences. Some argue that though it is true that a general rule applying to all state officials is excessive, it is also the case that wearing visible religious symbols ought to be prohibited in a limited range of positions, those that embody the state and its necessary neutrality to the highest degree. It may also be posited that the appearance of impartiality is particularly imperative in the case of judges, police officers, and prison guards, all of whom possess the power to punish people who are in vulnerable and dependent positions (the defendant, the suspect, the prisoner). These situations, as everyone will agree, are very tricky. The case of judges is probably the most complex and the most difficult to settle. The parties in a criminal trial, particularly the accused, who is subject to punishment, must imperatively be able to presume the judge’s impartiality. Could a Muslim defendant presume the impartiality of a Jewish judge wearing a yarmulke or of a Hindu judge displaying a tilak? The right to a fair trial is one of the fundamental legal guarantees granted to citizens. With that said, one of the mechanisms used to make that right effective is recusal. A judge must first assess whether she is fit to hear a given case. If she has doubts about her capacity to conduct a trial in an impartial manner, she has the duty to recuse herself. If she does not do so, she infringes on the right of the accused to receive a fair trial and violates the ethical code of her profession. And at all times the parties retain the right to present a demand for recusal. In addition, “true impartiality,” as a decision of the Supreme Court of Canada emphasizes, “does not require that the judge have

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no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.” 4 The judge’s partiality or impartiality is embodied in her attitude toward the parties and issues of the case she hears, and not in her personal characteristics. 5 The case of police officers, who also exercise a power to punish, raises certain difficulties as well. A prohibition on wearing visible religious symbols would be justified if it so happened that police officers and the people with whom they interacted were placed in peril. It would then have to be demonstrated that the prohibition on religious symbols is in certain contexts a functional necessity for the performance of the police officers’ duties. Conversely, the very plausible hypothesis that a police force may more easily gain the confidence of a diverse population if it is itself diverse and inclusive would also have to be taken into consideration. The question of whether public officials ought to be prohibited from wearing religious symbols is tricky in Western societies, where there is, on one side, great religious diversity and, on the other, distrust toward religions that have taken root more recently or toward the very presence of religion in the public space. Since immigrants are now arriving from a wider range of countries, it is not impossible that the question will be much less controversial in a few decades. The example of India, where the wearing of religious symbols in the public space and by public officials has come to be seen as commonplace, is particularly instructive in that respect.

Religion in the Public Space 49

Religious Heritage

One of the sources of discontent about mea sures of accommodation for religious minorities has to do with the perceived asymmetry between what is required of members of the majority and what is required of members of minority groups. Some have trouble understanding why accommodations must be granted to individuals belonging to minority religious groups so that they can practice their religion in the public space, whereas the majority must accept, in the name of secularism, the privatization of some religious symbols and rituals. The preceding arguments allow us to assess in a general manner the validity of that sense of iniquity. On one hand, the state and public institutions must not erect a precept or practice specific to a given religion—even that of the majority— into a constraining norm for all citizens. Hence the law that prohibited businesses from opening their doors on Sunday had to be abolished, since it translated a Christian norm into positive law. Atheists, agnostics, and members of different religious communities were being compelled to respect a law emerging directly from the Christian religion. The state was therefore not treating them with equal respect. Conversely, as long as they are justified, accommodations that allow individuals to practice their religion at work or in public institutions do not undermine the state’s neutrality. These practices regard only individuals. But does secularism require the sacrifice of a society’s religious heritage? In particu lar, must public institutions and public places be purged of any trace of religion, and especially, that of the majority?

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Would that not amount to obliterating the past, severing ties between the past and the present? An adequate conception of secularism must seek to distinguish what constitutes a form of establishment of religion from what belongs to a society’s religious heritage. In Canada, the old Lord’s Day Act, the privileges granted not long ago to Catholics and Protestants in the teaching of religion in the public schools, the recitation of a prayer before the beginning of sessions of a municipal council, and the obligatory use of the Bible to swear an oath in court constituted forms of establishment of the majority religion. In all of these cases, practicing Christians were favored and non- Christians were compelled to respect a law or a norm that was at odds with their convictions of conscience. But some practices or symbols that may have originated in the religion of the majority do not truly constrain the conscience of those who are not part of that majority. Such is the case for practices and symbols that have a heritage value rather than a regulatory function. The cross on Mount Royal in Montreal, for example, does not signify that the city of Montreal identifies itself as Catholic, and it does not compel non- Catholics to act against their conscience; it is a symbol that attests to an episode in Quebec’s history. A religious symbol is thus compatible with secularism when it is a reminder of the past rather than a sign of religious identification on the part of a public institution.6 As the Commission des Droits de la Personne et des Droits de la Jeunesse du Québec (Quebec Human Rights and Youth Rights Commission) points out, a symbol or ritual stemming from the religion of the majority “does not infringe on fundamental liberties if it is not accompanied by any constraint on individuals’ behavior.”7

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That criterion is widely accepted. In actuality, members of religious minority groups rarely militate for the removal of symbols of their host country’s religious heritage. They are more likely to demand, in certain situations, a pluralization of the religious symbols in the public space. But it is necessary to keep practices that do constitute a form of identification on the state’s part with a religion—usually that of the majority—from being preserved on the pretext that they now have only a heritage value. Consider prayers said at the beginning of sessions of a municipal council or the crucifi x above the Speaker’s chair in the Quebec National Assembly. That crucifi x, installed by Prime Minister Maurice Duplessis in 1936, implies that there is a close relationship between the legislative power and the majority religion. It would be preferable that the very site where elected representatives deliberate and legislate not be identified with any particu lar religion. After all, the Quebec National Assembly is the assembly of all citizens of Quebec. That being so, there will still be cases where the state will be unable to demonstrate perfect neutrality. For example, every society needs a common calendar allowing citizens and institutions to coordinate their actions. These calendars generally have a religious origin. That explains why, for a long time in Quebec, businesses had to be closed on Sunday and why most legal holidays coincide with Christian religious celebrations. It would not be feasible to create a sanitized, dehistoricized calendar. As we shall see in the second part of this book, the approach to be taken is, rather, to make reasonable accommodations that allow members of different religions to take time off from work for their most important religious celebrations, just as Christians

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can do. Mea sures of accommodation make it possible both to maintain historical continuity and to remedy indirect discrimination. A liberal and pluralist secularist system thus permits, in some cases, a sensible and fair response to the questions surrounding the wearing of religious symbols and those related to religious heritage that arise in all diverse societies.

6 LIBERAL- PLURALIST SECULARISM The Case of Quebec

The discussion of “models” of secularism and their underlying principles should not lose sight of the fact that concrete experiences of secularism are always colored by history and context, by the web of facts and meanings specific to each society. In that sense there is no pure model of secularism: attempts to reconcile citizens’ moral equality and their freedom of conscience will always vary with the specific context. That is why no two regimes of secularism regulate in the same way all the dilemmas that arise from managing religious diversity. Thus far our views have been primarily theoretical; we now wish to focus on the experience of Quebec in matters of secularism. For us it seems to be a particularly interesting embodiment of the liberalpluralist model just outlined. Like all concrete forms of governance,

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Quebec’s secular regime is traversed by tensions, but it is nonetheless an instructive empirical example for a world in which societies must learn to live with irreducible moral and religious diversity.1 We shall first briefly retrace that historical path and will then attempt to reconstitute the (until recently) fairly broad consensus that has taken shape on the subject of the form of political secularism best adapted to Quebec’s reality.

Quebec’s Path to Secularism

We cannot reconstruct here the entire history of relations between the state, religion, and society in Quebec, but let us say that one of the central characteristics of secularism in Quebec is that it arrived at its definition gradually and, for the most part, implicitly. A series of historical events and of political and legal decisions has resulted in a diminution of the Catholic church’s political power and gradual progress toward the respect of the equal freedom of conscience of all citizens. Contrary to a widespread belief, the process of secularizing Quebec did not begin in the 1960s with the modernization of Quebec society associated with the Quiet Revolution. Although an organic link existed between the church and the state under the French colonial regime, the end of that regime in the 1760s marked the beginning of the separation of the two powers. For essentially pragmatic reasons, the British Crown quickly renounced its desire to make the Anglican Church the official church of its new colony. Mea sures of religious tolerance were set in place beginning in the eighteenth century to ensure social peace and political stability, given the forced coexistence

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of French and British Canadians. 2 The Treaty of Paris of 1763 and the Quebec Act of 1774 acknowledged Catholics’ freedom of worship. There is no question that the system recognizing religious pluralism has admitted of exceptions, but practices of religious tolerance can be found in Canada’s history. The British North America Act (BNAA) of 1867 had the effect of clarifying the question of the relationship between church and state in Canada—paradoxically so, since it was silent on the question. Unlike the United States Constitution, the new Federal Constitution of Canada did not officially adopt a principle of “nonestablishment” of religion, but it also did not confer the status of official or national church on a particu lar faith. The Crown would not be under the custodianship of the church. No reference to God appears in the preamble to the 1867 constitution. It thus implicitly established a separation of church and state, as well as a partial, but already advanced, system of religious neutrality. 3 The independence of the state vis-à-vis the churches was therefore silently affirmed.4 In the late nineteenth century and in the first half of the twentieth, the church’s efforts to exercise temporal power were often checked by the state authorities, who made several decisions that the clergy opposed.5 Consider, for example, the ruling that cemeteries are under civil jurisdiction; the Quebec law against the undue influence of priests (regarding the elections of 1875); the decree of the Superior Court of Quebec that made marriage a civil bond in the first instance (Delpit- Côté case of 1901); and the various decisions recognizing the rights of Jews and Jehovah’s Witnesses. As Milot has pointed out, the widespread idea that the secularization of Quebec was long in coming is based in great part on a

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confusion between the social influence of the clergy—its influence over mores and social norms—and its real political power, which was much more circumscribed. The Quiet Revolution did mark an acceleration in the process of secularizing the Quebec state. Sectors long left under the responsibility of the church, such as education, health, and social ser vices, were gradually taken over by the nascent welfare state. Phenomena such as the transformation of Quebecers’ relationship to Catholicism and the growth in cultural diversity meant that the Catholic church was increasingly unable to be the force of social regulation and integration it had been. One of the most determining elements in the expansion of Quebec secularism was the culture of human rights that gradually gained ground in the second half of the twentieth century, as attested by the adoption of the Canadian Bill of Rights under the Diefenbaker government in 1960, of the Quebec Charter of Rights and Freedoms in 1975, and of the Canadian Charter of Rights and Freedoms in 1982. These charters protect individuals’ fundamental rights and freedoms, including their right to equal treatment before the law and their freedom of conscience and religion. They also proscribe some forms of discrimination, including that based on religion. Since that time the courts have tended to rule unconstitutional those laws that favor one religion or unduly hinder a citizen’s freedom of conscience. The secularism of the Quebec state and of its institutions has thus expanded and been consolidated under the influence of the institutionalization of that culture of rights and freedoms. 6

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Quebec’s secularism, then, did not come into being as a result of a constitutional declaration or a legislative act devoted explicitly to it. Although at first religious tolerance and the partial separation of church and state were dictated less by moral considerations than by the British regime’s need to ensure a certain level of collaboration on the part of Catholic subjects, secularism gradually became a mode of governance designed to recognize the equality of religions in a society marked both by a diversity of relationships to the religious and by religious diversity.7

Uniting behind Open Secularism

Reflections on secularism in Quebec have been rich and dynamic since at least the 1990s. 8 The first debate, in 1994, on the wearing of the Islamic headscarf at school, and, in 1999, the publication of the report of the Groupe de Travail sur la Place de la Religion à l’École (Working Group on the Place of Religion in School), otherwise known as the Proulx report, were important moments in these reflections. Because the secularization of the Quebec schools came about belatedly— primary and secondary schools were not removed from religious control until 1998, and Catholic and Protestant religious education was replaced by the Ethics and Religious Culture curriculum only in September 2008—schools constituted the center of gravity for the debate on secularism. With that said, the increasingly diverse immigrants to Quebec and the current international context, where the relationship among cultures and among religions is particularly prominent, broadened reflections to include how to achieve peaceful coexistence in a

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multicultural society composed of citizens with diverse beliefs and modes of life.9 It seems to us that it is possible to fi nd a fairly broad consensus among the social actors who have reflected on Quebec secularism in the last two decades. They agree on what the Proulx report called an “open” secularism and what we have designated as the “liberalpluralist” model.10 An open secularism recognizes that the state needs to be neutral—laws and public institutions must not favor any religion or any comprehensive secular view—but also acknowledges the importance that the spiritual dimension of existence holds for some people and, as a result, the importance of protecting individuals’ freedom of conscience.11 It is in light of that conception of secularism that the majority of participants in the debate have, for example, opposed the renewal of the derogation clause allowing the public schools to provide a Catholic and Protestant religious education. But rather than ask that religion be completely removed from the schools, they have suggested that religious teaching be replaced by a program allowing students to acquire the knowledge they will need to understand religion and its varied manifestations in Quebec and elsewhere and to develop the skills necessary to peacefully coexist within a diverse society—objectives adopted by the new Ethics and Religious Culture curriculum.12 Quebec’s choice of a liberal and inclusive approach during the debate in the mid-1990s on the wearing of the hijab in the public schools has also proved to be one of the decisive moments in the construction of that model of open secularism. Although there was not unanimity, a fairly broad consensus emerged at the time to allow

The Case of Quebec 59

students wearing the headscarf to attend public school rather than exclude them and thus direct them toward private religious schools. Most of the participants in the debate came to the conclusion that, in addition to infringing on the students’ right to equality and freedom of conscience, banning the headscarf would likely deprive them of a unique opportunity for socialization with pupils and teachers from all origins and backgrounds.13 As the Conseil du Statut de la Femme (Council on the Status of Women) wrote at the time, “The exclusion from school of girls who wear the headscarf has harmful consequences for their current and future integration into society.”14 In some sense that orientation reflects the form of secularism, more liberal and pluralist than republican, that has gradually taken root in Quebec. It allows citizens to express publicly their religious convictions as long as that expression does not interfere with the rights and freedoms of others. It is an institutional arrangement whose aim is to protect rights and freedoms and not, as in France, a constitutional principle and identity marker to be defended. The neutrality of the state and its separation from the church are not viewed as ends in themselves but as means making it possible to achieve the fundamental dual objective of respect for moral equality and protection of citizens’ freedom of conscience.15 Thus the existence of a fairly broad agreement among the public bodies and groups in civil society that have expressed an opinion on the model of secularism that Quebec ought to adopt does not mean that unanimity reigns among citizens on that question. On the contrary, the debate in Quebec on “reasonable accommodations” has revealed profound disagreements about the direction the state ought

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to take in the matter of secularism. For some, the current context requires that we modify, in a more or less radical way, the model of open secularism focused on the protection of rights and freedoms. Having consulted the citizens living in all regions of Quebec and having conducted its own research, the Commission de consultation sur les pratiques d’accommodement reliées aux différences culturelles came to the conclusion that open secularism best allowed respect both for the equality of citizens and for their freedom of conscience and of religion, thus realizing the two ends of secularism. The issue at hand was, therefore, to clarify and expand that model.16 The Commission’s report has not closed the debate on secularism but has shown that “open secularism” thus far has allowed Quebec to achieve a satisfying balance, at least in comparative terms, between respect for individual rights and freedoms and the imperatives of life in society.

part two

FREEDOM OF CONSCIENCE1

The diversity of beliefs and values that has taken root as one of the structuring features of contemporary societies often produces ethical and political disagreements that erode the social bond to varying degrees. One of the questions that divides citizens is the legitimacy of mea sures of accommodation whose aim is to allow certain people to respect beliefs at odds with those of the majority. These requests for accommodation often have the goal of allowing the free exercise of religion. Consider, for example, a civil servant who asks for a derogation of a regulation governing employees’ manner of dress so that he can wear a religious symbol while on duty, or a group of students wanting their university to make available a room where they can pray in peace. With that said, secular beliefs—vegetarianism, pacifism, or libertarianism, for example— can also be the source of requests for accommodation or exemption.

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It is reasonable to think that within multicultural societies that protect freedom of conscience and expression and that respect the pluralism of values and beliefs that that type of request will not become any less common. Practices of accommodation for minority religious beliefs (“religious accommodations”) in particu lar were at the heart of the debate on the terms of social cooperation that recently held Quebec’s attention. Cases involving individuals who invoke freedom of religion to obtain the right to wear religious symbols at work have come before the courts in many countries, including Germany, Switzerland, Turkey, the United Kingdom, and Canada. School curricula, work schedules, dietary offerings, and practices related to health and social ser vices, as well as norms of public health (on the slaughter of animals, the wearing of protective helmets, the ceremonial use of drugs, and so on), are regularly the object of requests for accommodation or exemption. How should a society motivated by an ideal of social justice treat such requests? The aim of a liberal and pluralist conception of secularism is to achieve an optimal balance between respect for moral equality and the protection of individuals’ freedom of conscience. We have claimed that, in certain situations, this model of secularism requires the implementation of mea sures of accommodation designed to allow the exercise of freedom of conscience. Is that truly the case? Some people believe that religious accommodations are at odds with the principles of social justice at the foundation of democratic and liberal political systems. One of the strongest criticisms of these accommodations is based on the principle that public norms and institutions must treat the citizenry as a whole in an equitable manner.

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Public norms and institutions are equitable when they distribute the advantages and disadvantages derived from social cooperation in a morally acceptable way: citizens must receive their fair share of the benefits of collective life while assuming in turn their fair share of the burdens intrinsic to it.2 A society guided by an ideal of social justice will constantly seek to reassess its public norms and institutions to ensure that they contribute as satisfactorily as possible to the establishment of an equitable system of social cooperation. And though some maintain that the obligation for accommodation is derived from more general principles of justice, such as the right to equality and freedom of conscience and religion, others believe that religious accommodations are more akin to preferential treatment and are consequently inequitable. These two positions are defended by citizens in the public sphere, by legislators and judges in official forums, and by theorists in the contemporary debates of political philosophy.

7 THE LEGAL OBLIGATION FOR REASONABLE ACCOMMODATION

The freedom of religion protected by national and international legal instruments includes not only the freedom to hold religious beliefs but also to manifest one’s religious affiliation through worship, rites, and the spreading of the faith. Article 18 of the International Covenant on Civil and Political Rights delineates the dimensions of freedom of religion as follows: “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”1 Freedom of religion therefore includes the freedom to practice one’s religion. But does that freedom of religious practice also necessarily include an obligation for accommodation or adaptation when norms

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of general application that are not even prima facie discriminatory prevent one from fulfi lling what one perceives to be a religious duty? Opinions on that question are divided. Whereas John Locke, in his Letter concerning Toleration, readily acknowledged that freedom of conscience included the freedom to manifest one’s religious beliefs, he did not believe that it also entailed the obligation to accommodate believers who encountered a conflict between a law that served the common good and a religious directive.2 At present, however, some countries, such as Canada and the United States, maintain that public and private institutions are in certain circumstances subject to a legal obligation to accommodate minority religious beliefs or practices. That norm is a specific modality of a broader legal obligation whose aim is to better ensure the exercise of the right to equality among citizens belonging to certain categories, usually minorities. It proceeds from the observation that legitimate norms of general application can in certain circumstances prove to be discriminatory toward persons possessing particu lar cultural or physical characteristics (including physical condition, age, ethnicity, language, and religion). Laws and norms are generally designed as a function of the majority or of the most common contexts of application. It is normal, for example, that the rules in a given work environment be designed for the majority of workers, whose physical condition and personal beliefs do not generate any special constraints. Nevertheless, the result may be that a pregnant woman, a person living with a physical disability, or someone whose faith entails specific obligations (in terms of worship, dress, or diet) cannot continue to exercise his or her profession if the work schedule or working conditions are not

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adapted to their particular characteristics. Similarly, it is easy to understand why a school would adopt a regulation prohibiting students from bringing syringes to school, but no one would think of objecting to a young diabetic being exempted from the application of that legitimate regulation. Hence fairness sometimes requires that measures of accommodation (exemptions, adjustments) be granted, even when the norm envisioned is not discriminatory on the face of it. It is to counter that type of discrimination, usually indirect, that the courts or legislatures in several countries have decreed that the principle of accommodation ought to be conceived as a legal obligation proceeding from more general rights, namely, the right to equality and nondiscrimination or freedom of conscience and religion. Requests for accommodation on religious grounds, since they belong to the realm of fundamental rights, therefore can no longer be assessed exclusively in terms of management or public policy considerations.3 When we move from law to political philosophy, the justification for the norm of reasonable accommodation somewhat resembles that at the heart of multiculturalism or the “politics of recognition.”4 One of the central arguments in favor of multiculturalism as a principle of political morality is that certain public norms applying to all citizens are not neutral or impartial from a cultural or religious point of view. For example, social cohesion and the coordination of actions between citizens require that the life of a collectivity be synchronized through a shared official calendar. Given the historical influence of religions and the fact that they generally include a substantive morality prescribing a series of acts to be performed at the proper time, calendars usually arise from religious traditions. Even in secular states and

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secularized societies, workdays and days of rest, as well as some legal holidays, are taken from the majority religion. The old Lord’s Day Act, which in Canada prohibited businesses from opening on Sunday, was an example of the direct translation of a Christian norm into positive law. 5 Even today, businesses close on Christmas and Easter but have no obligation to do so on important Jewish or Muslim holidays or on Chinese New Year’s. That is not necessarily illegitimate. The norms of a society are not determined solely as a function of abstract principles of justice: they are also determined by context (demography, history, and so on). In the contemporary world a society cannot have fi fty legal holidays on its calendar, and it is only natural that certain public norms should be rooted in the attributes and interests of the majority. There are norms that, quite simply, cannot be culturally neutral: in addition to the calendar, think of the common public language. These norms are not illegitimate, but inasmuch as they indirectly favor the majority, mea sures of accommodation must sometimes be taken to reestablish equity within the terms of social cooperation.6 That is why some political philosophers—in agreement with jurisprudence in that respect—maintain that the recognition and accommodation of religious and cultural diversity is now a question of social justice.7 As a moral and political principle, multiculturalism, at least in some version of it, has its roots in liberalism, that is, in the furtherance of rights and freedoms, and not in moral or cultural relativism, and it does not deny the rights of democratic majorities.

8 ARE RELIGIOUS BELIEFS “EXPENSIVE TASTES”? Choices, Circumstances, and Individual Responsibility

The legitimacy of requests for accommodation on religious grounds is not unanimously accepted. The validity of an accommodation measure allowing a schoolgirl, for example, to wear a hijab to school is not apparent to everyone. Yet similar derogations may be granted for reasons of health, as when a girl must cover her head under orders from her doctor. No one would dream of opposing such an exception. Accommodations designed to ensure the equality of disabled persons or pregnant women are widely accepted. Public opinion is therefore much more suspicious of requests motivated by religious belief. One of the arguments most often invoked to explain why requests based on religion cannot be placed on equal footing with requests on grounds of health is that people living with a disability or an illness

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did not choose their condition, whereas believers have made the choice to embrace a given religion and to interpret it strictly. In other words, a distinction would have to be drawn between situations that entail a voluntary choice and those that result from circumstances forced upon individuals. The diabetic is not ill voluntarily: the disease took hold of him in the form of a constraint. Conversely, a Muslim or Sikh can always choose to interpret and practice her religion differently or even to give it up. That is why accommodation measures are viewed as preferential treatment giving an advantage to those whose religious practice is more demanding, at the expense of atheists, agnostics, and believers whose religious practice is confi ned to the private sphere and to associative life. That is the position clearly defended, for example, by the Mouvement Laïque Québécois (Quebec Secular Movement): “The comparison between accommodations for physical disabilities and accommodation on religious grounds is fallacious, since the disabled have not chosen or desired their disability. . . . Religious observers must assume responsibility for the constraints they choose to impose on themselves in adopting rituals that are restrictive with respect to secular civil society.”1 The idea that religious accommodations may be justified in the name of social justice is counterintuitive because it seems to be in tension with a widespread conception of equality among citizens as well as of individual responsibility. In contemporary liberal democracies, which have rejected both the idea of a self-regulating market economy and that of a complete socialization of wealth, it is broadly accepted that the state must promote equality of opportunity and not equality of condition. The political philosophy under-

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lying that type of political system makes a place both for equal opportunity for individuals and for individual responsibility. Individuals must enjoy equal opportunities to fi nd fulfi llment, but they must assume responsibility for the consequences of their decisions. Public institutions and policies must be guided by the ideal of a society in which all individuals have an equal opportunity to choose their life plan and to implement it. In principle, factors such as social class, gender, sexual orientation, physical characteristics, ethnicity, and religion should not diminish a person’s opportunities to flourish. The equal moral value ascribed to all individuals therefore means that everyone should initially have an equal opportunity to choose and realize his or her conception of what a successful life is. Conversely, the state will not compensate individuals who have “expensive tastes,” that is, voluntarily chosen costly or constraining personal preferences. If someone’s concept of human flourishing requires that she work only six months out of the year so that she can travel the other six months, it is up to her to find a career lucrative and flexible enough to allow her to execute her life plan. If she does not succeed in finding such a career, it is incumbent upon her to revise her plans in accordance with the resources available. She cannot legitimately expect her fellow citizens to contribute more to the public trea sury so that resources will be allotted to her to suit her preferences. Individuals are held responsible for what belongs to their will and deliberative capacities.2 Agents are therefore given the responsibility to adapt their preferences, up to a certain point, to the field of possibilities and constraints that structures their lives.

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According to that point of view, religious accommodations should be considered inequitable because believers have the ability to adapt their beliefs and life plan to the conditions with which they must come to terms. Just as someone who wanted to work only six months out of the year can ultimately be satisfied with summer vacations, the devout person can reinterpret his beliefs so that they are better in keeping with his working conditions or with the requirements of life in society. Religions are evolving systems of beliefs and practices with the capacity to adapt to the realities specific to each era. It is, in fact, that relative fluidity and flexibility that allow historical religions to remain current and pertinent in the eyes of their followers. Since religions are not immutable belief systems, it does not seem a priori unreasonable to ask religious persons to adapt their beliefs to the public rules or else to assume the consequences for their way of living their faith. From that standpoint, religious beliefs are one kind of subjective preference among others; they do not justify differential treatment, either in their favor or against them.3 According to Brian Barry, for example, fairness dictates that all citizens be treated identically—that is, that the same range of options or possibilities be offered them—and that they have the resources and capacities to take advantage of them. It is then up to individuals to decide what set of opportunities they wish to avail themselves of. Within that general framework, if an individual decides to adopt beliefs that restrict his access to certain opportunities, he cannot turn to the state to be compensated or to have different rules applied to him.4 That position is correct in several respects, but it neglects two of the premises on which the obligation for reasonable accommodation

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rests: (1) the rules that are the object of requests for accommodation are sometimes indirectly discriminatory toward members of certain religious groups; and (2) convictions of conscience, which include religious beliefs, form a particu lar type of subjective preference that calls for special legal protection. These two premises, when combined, justify the obligation for reasonable accommodation.

Neutrality and Indirect Discrimination

For all individuals truly to have access to the same range of options, the rules that delimit their choices must not favor or disadvantage any category of citizens. It is because certain laws or rules are not neutral that accommodations are sometimes justified. How can it be denied, for example, that our Christian calendar poses challenges for practicing Jews and Muslims that it does not pose for observant Christians? Is it not fair to say that it is generally easier for Christians to work and fulfi ll their religious obligations or follow their traditions than it is for members of non- Christian religions? It is precisely to reestablish equity that exemptions or adjustments are sometimes necessary (adjusting the work schedule or work space, granting time off for religious holidays, allowing people to wear conspicuous religious symbols, and so on). Similarly, the usual norms that govern menu offerings in hospitals, schools, prisons, or on airplane fl ights are established in accordance with the preferences of the majority, which, if the composition of meals is left strictly to the law of supply and demand, can make it difficult for vegetarians, Jews who keep kosher, and Muslims who observe halal to respect the dictates of their conscience.

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The notion of reasonable accommodation was first conceived by the courts as a means to make possible the correction of indirect discrimination. A norm can be neutral or impartial on its face even while producing, in its application, effects detrimental to members of a given group. For example, no trace of explicit discrimination can be found in a school regulation that proscribes the wearing of head coverings. That rule does not target any particu lar type of head covering or any category of persons. In actual fact, however, it imposes a constraint on those whose faith requires the wearing of head coverings, whereas those who are not subject to such an obligation can respect their convictions of conscience (religious or secular) while still attending school. In response to that view, Barry argues that it is absurd to think that laws and other norms must be neutral in their effects. The goal of a law is to realize a given good, which often requires placing limits on individual freedom by prohibiting certain behaviors. The law does not seek to be neutral but to realize an end judged desirable by lawmakers. A law prohibiting acts of pedophilia, Barry reminds us, will not be neutral toward pedophiles. The goal of the law is precisely to restrict their freedom. 5 Barry, here, is missing the point. Norms and laws obviously affect individuals in different ways. A surtax on sport utility vehicles (SUVs) will, of course, negatively affect the person who draws great satisfaction from driving such vehicles. The surtax can be justified, however, if its aim is to make users internalize the negative externalities produced by the recreational use of an SUV. But lawmakers may agree to exemptions (or provide for them in the law) to allow for certain uses

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of SUVs that they do not wish to discourage, such as professional uses. In the same way, a school regulation prohibiting students from wearing head coverings in class may be designed to establish a certain protocol and to create an environment favorable to learning, and not to prevent students from respecting their religious obligations. The regulation may target those who wish to wear baseball caps, bandanas, or other head coverings in class, but without prohibiting the wearing of visible religious symbols. It is in such situations that accommodations are necessary. Hence, Barry’s retort—that laws and regulations are never neutral in their effects— does not constitute an adequate response to the problems that accommodations are designed to correct, but it does remind defenders of accommodations that the argument based on the nonneutrality of certain public norms needs to be spelled out.

The Status of Meaning-Giving Beliefs and Commitments

One part of the debate on the relationship between fairness and religious accommodations therefore concerns the existence of indirect discrimination on the basis of religion. An opponent of accommodation practices could argue that, in clear cases of unequal treatment— laws prescribing that businesses be closed on Sunday, for example— the norm or law must simply be rewritten or abrogated. In all other cases the believer must assume the cost of his beliefs. For adversaries of accommodation, religious beliefs are no different from the other beliefs and preferences and as a result do not enjoy a special moral and legal status.6 Conversely, any position maintaining that, in certain

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circumstances, it is a moral obligation to seek mea sures of accommodation must necessarily demonstrate that religious beliefs belong to a distinct type of belief that calls for greater legal protection. Another part of the debate therefore bears on the status of religious beliefs and, by extension, of freedom of religion. The argument based on the existence of forms of indirect discrimination functions in conjunction with a separate argument based on the particular status of what we have called “core” or “meaning-giving” convictions and commitments. From that standpoint, core beliefs and commitments, including religious ones, must be distinguished from other personal beliefs and preferences because of the role they play in individuals’ moral identity. The more a belief is linked to an individual’s sense of moral integrity, the more it is a condition for his self-respect, and the stronger must be the legal protection it enjoys. Core beliefs and commitments allow people to structure their moral identity and to exercise their faculty of judgment in a world where potential values and life plans are multiple and often compete with one another.7 Moral integrity, in the sense we are using it here, depends on the degree of correspondence between, on one hand, what the person perceives to be his duties and preponderant axiological commitments and, on the other, his actions. 8 A person whose acts do not satisfactorily correspond to what he judges to be his obligations and core values is in peril of finding his sense of moral integrity violated. Not all beliefs and preferences, therefore, can be the basis of requests for accommodations. If beliefs and preferences do not contribute toward giving a meaning and direction to my life, and if I cannot plausibly claim that respecting them is a condition for my self-respect,

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then they cannot generate an obligation for accommodation. That is why a Muslim nurse’s decision to wear a scarf at work cannot be placed on the same footing with a colleague’s choice to wear a baseball cap. In the first case the woman feels an obligation—to deviate from it would go against a practice that contributes toward defi ning her, she would be betraying herself, and her sense of integrity would be violated—which is not normally the case for her colleague. In short, beliefs that engage my conscience and the values with which I most identify, and those that allow me to find my way in a plural moral space, must be distinguished from my desires, tastes, and other personal preferences, that is, from all things liable to contribute to my well-being but which I could forgo without feeling as if I were betraying myself or straying from the path I have chosen. The nonfulfi llment of a desire may upset me, but it generally does not impinge on the bedrock values and beliefs that define me in the most fundamental way; it does not infl ict “moral harm.”9 Such a perspective allows us to glimpse similarities between requests made on health grounds and those based on reasons of conscience: just as serving meat to a patient whose state of health requires a vegetarian diet amounts to infl icting physical harm on her, forcing the vegetarian to eat meat amounts to infl icting moral harm. We could also say that the individual in the first case is subject to a physical restriction, whereas the one in the second case is subject to a moral restriction or a restriction of conscience. Let us examine for a moment the opposing position, which maintains that no distinction should be made between meaning-giving beliefs and commitments and personal preferences. In its statement

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submitted to the Commission de consultation sur les pratiques d’accommodement reliées aux différences culturelles, the Mouvement Laïque Québécois (MLQ) recommends adopting the following general rule: “In application of secular principles, no one shall be able to grant derogations to democratically established public norms on the grounds of religious beliefs or metaphysical convictions.”10 According to that rule, any request for accommodation on religious grounds would be rejected automatically. The “public norms” to which the MLQ refers also include the internal rules that institutions set down to ensure their smooth operation. The recommendation would therefore mean that a police force that had adopted a regulation prohibiting the wearing of beards could not grant a derogation to a Muslim or Sikh for whom wearing a beard constitutes a religious obligation. The police administration could, however, make an exception for someone who needed to wear a beard for health reasons.11 That automatic denial of requests for accommodation on religious grounds may be understood in two ways. On one hand, it might be possible to grant derogations for reasons of conscience, but solely in cases where requests are based on secular philosophical considerations. In the case of two vegetarian prisoners, for example, the one inspired by the utilitarian philosopher Peter Singer could have a meatless diet, whereas the Hindu prisoner would have to choose between going against her conscience and going hungry. That discriminatory position is unacceptable on the face of it. But in any event, that is probably not the position defended by the MLQ, which maintains that neither “religious beliefs” nor “metaphysical convictions” can justify mea sures of accommodation.12

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The MLQ’s recommendation would thus more plausibly lead to a rejection of all requests for accommodations based on convictions of conscience. The only way to avoid discrimination on religious grounds while accepting the MLQ’s proposal would be to make no distinction between core religious and core secular beliefs, and to grant neither of them a special moral and legal weight. The result of that position would be to place on equal footing requests derived from core convictions and those expressing personal preferences, desires, whims, or practical considerations that have nothing to do with individuals’ core beliefs and commitments. From that standpoint, a manager would give the same weight to the following requests: (a) “I want to leave work at four o’clock on Fridays because I want to avoid rush hour traffic”; and (b) “I want to leave work at four o’clock on Fridays because I need to get home before sundown to respect the Shabbat.” A manager placed in that situation would have no obligation to take under advisement the request based on reasons of conscience or to grant it more weight than that based on a mere personal preference. We would cease to grant greater protection to convictions of conscience, that is, to beliefs that are intimately linked to a person’s moral identity and integrity. The very notions of “freedom of conscience” and “freedom of religion” would be null and void, since they could be reduced to freedom of thought; in other words, that proposal

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would have the effect of disconnecting freedom of conscience from the freedom to put one’s beliefs into practice. Although it is true that the privileged moral and legal status granted to convictions of conscience may open the door to their instrumentalization, we believe that it is better to seek ways to limit the scope of potential abuses than to restrict citizens’ freedom of conscience before the fact.

9 THE SUBJECTIVE CONCEPTION OF FREEDOM OF RELIGION AND THE INDIVIDUALIZATION OF BELIEF

The special legal status of religious beliefs is derived from the role they play in people’s moral lives rather than from an assessment of their intrinsic validity. A liberal and democratic state acknowledges the limits of practical reason with respect to the question of the meaning and ultimate aims of existence. It is up to individuals, perceived as moral agents capable of providing themselves with a conception of the good, to position themselves in relation to the different understandings of the world and of the meaning of human life. The “personal or subjective” conception of freedom of religion adopted by the Supreme Court of Canada can be understood as an extension of that priority given to individuals’ moral autonomy. In the words of the majority in the Amselem decision (2004),

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Freedom of religion under the Quebec Charter of Human Rights and Freedoms (and the Canadian Charter of Rights and Freedoms) consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particu lar practice or belief is required by official religious dogma or is in conformity with the position of religious officials. This understanding is consistent with a personal or subjective understanding of freedom of religion. As such, a claimant need not show some sort of objective religious obligation, requirement or precept to invoke freedom of religion. It is the religious or spiritual essence of an action, not any mandatory or perceived-as-mandatory nature of its observance, that attracts protection. The State is in no position to be, nor should it become, the arbiter of religious dogma.1 Freedom of religion allows people to adopt the religious beliefs of their choice and, when applicable, to put them into practice. Traditionally, however, a claimant requesting an adjustment or an exemption was expected to demonstrate the objectivity of his belief, that is, the existence in his religion of the obligation or precept invoked. The claimant, in other words, had to demonstrate that the religious belief cited conformed to the dogma established in the texts of his religion

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or recognized by its authorities. That approach has been rejected in recent U.S. and Canadian case law on freedom of religion. In the Amselem decision, the majority established that the claimants “need not show some sort of objective religious obligation, requirement or precept to invoke freedom of religion.”2 For the court, the essential thing is that the petitioner sincerely believes that his faith prescribes a given practice or act. No authorized religious representatives or experts need confirm the existence of the precept invoked for a request for an accommodation based on freedom of religion to be taken under advisement. The criterion used by the Supreme Court is that of the sincerity of belief: the petitioner must demonstrate that he truly believes he is obligated to conform to the religious precept in question. The chief advantage of a personal and subjective conception of freedom of religion is that it spares the courts from having to act as interpreters of religious dogma and as arbiters of the inevitable theological disagreements that divide all religious traditions. In relying on personal belief, they avoid having to choose between the contradictory interpretations of religious doctrines. They also circumvent the danger of falling back on the majority opinion within the religious community and thereby contributing to the marginalization of minority voices. The subjective conception of religion is thus in harmony with one of the most notable evolutions in our time with regard to how people experience faith, namely, the phenomenon of “individualization” or “Protestantization” of belief. For some believers, what matters is less respect for religious orthodoxy than the resonance of religious beliefs in one’s personal quest for meaning and purpose. Increasingly, individuals reinterpret their own religious tradition in light of their personal experience or

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even draw from a diversity of religious, spiritual, and secular traditions the elements allowing them to structure their worldview.3 Such is the religious experience that, in 1902, the American philosopher and psychologist William James called “personal religion,” in contrast to “institutional religion.” In the personal branch of religion, writes James, “it is on the contrary the inner dispositions of man himself which form the center of interest, his conscience, his deserts, his helplessness, his incompleteness. . . . The relation goes direct from heart to heart, from soul to soul, between man and his maker.”4 With that said, the subjective conception of freedom of religion and the emphasis placed on the sincerity of belief, though in step with the phenomenon of the personalization of faith, do not necessarily put at a disadvantage religious experiences focused more on religious practices and rites. As attested by the Amselem case, people with strict or orthodox religious practices can base themselves on the subjective conception of freedom of religion to request accommodations, even if the religious authorities in their community do not agree on whether the religious practice in question is obligatory or optional. 5 Finally, the subjective conception of freedom of religion allows the courts to circumvent the perhaps insoluble problem of defi ning what a religion is. It is actually very difficult to find a common denominator for all religious and spiritual traditions. It is not uncommon for the definitions selected to lean toward the three major historical monotheisms.6 For example, to stipulate that what defi nes religion is the relation to one or more gods excludes ipso facto nontheist Eastern spiritual philosophies such as Confucianism, Buddhism, and Taoism, something that hardly seems justifiable.

10 DOES THE LEGAL OBLIGATION FOR ACCOMMODATION FAVOR RELIGION? Religious and Secular Convictions of Conscience

A frequently formulated criticism of the obligation for accommodation based on freedom of religion is that it favors religious conceptions of the good life over secular ones. Why, for example, should the work schedule of a Seventh-Day Adventist employee be adjusted so that she never has to work on Saturday (her Sabbath), whereas her colleague, who would like to pursue professional training or take piano lessons that are offered only on Saturday, or spend time with his aging mother, still has to work on that day or risk losing his job? Does that not amount to favoring religious conceptions of the good life at the expense of secular conceptions (focused in par ticu lar on professional fulfi llment, artistic expression, or family responsibilities)? Are religious

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accommodations compatible with the neutrality toward conceptions of the good that the liberal state must demonstrate? We know that, historically in the West, political secularism and religious tolerance sought to ensure peace and stability in societies marked by the fragmentation of the Christian church. The objective was that members of different religious faiths should enjoy an approximately equal freedom of conscience, which required separation between the state and the churches. That position is nevertheless compatible with the accordance of a privileged status to religion in general when compared to nonreligious worldviews. John Locke believed that religious tolerance could be extended to the Jew and the “Mohametan,” but that atheists, untrustworthy because they did not have to answer to a higher being for their actions, could not be tolerated. In the same spirit, Joseph Story of the U.S. Supreme Court affirmed in the 1830s that, though the First Amendment of the United States Constitution prohibited the state from identifying itself with a particular church, because the churches present were Christian (and, in fact, Protestant), it was normal and legitimate for the principles of Christianity to be invoked when interpreting the laws. For Justice Story, the goal of the First Amendment was to “exclude all rivalry among Christian sects,” but Christianity nevertheless “ought to receive encouragement from the state.” Christianity, he said, is essential to political governance because the belief in “a future state of rewards and punishments” is seen as “indispensable to the administration of civil justice.” In addition, according to Story, “it is impossible for those, who believe in the truth of Christianity, as a divine revelation, to doubt, that it is the especial duty of government to foster, and encourage it among all the citizens.”1

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That primacy granted to religion was defended throughout the nineteenth century.2 In 1890 thirty-seven of the forty-two American states existing at the time recognized the authority of God in their constitutions, either in the preamble or in the body of the text itself. In 1892 a unanimous judgment of the U.S. Supreme Court stated that, in an accurate portrait of “American life, as expressed by its laws, its business, its customs, and its society, we fi nd everywhere a clear recognition of the same truth . . . that this is a Christian nation.”3 Even now, the primacy of religion over other beliefs is affi rmed in the constitutional theory of “nonpreferentialism,” according to which the principle of the “nonestablishment” of religion means only that no particular religion can be favored by the U.S. Congress and not that a generic approbation of religion is prohibited.4 In the case of Wisconsin v. Yoder, concerning the rights of Amish parents to lower the age for compulsory school attendance from sixteen to fourteen for their children, the U.S. Supreme Court established that religious beliefs constitute a distinct category of beliefs that merit preferential treatment before the law: “A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claims must be rooted in religious belief.”5 In a very different context, French president Nicolas Sarkozy adopted a position attributing a privileged status to religion or, at least, to a certain form of spiritualism when he argued that the quest for transcendence is part of the ontological constitution of human beings and that, as a result, it is a necessary condition if they are to thrive. These passages from his speech at the Lateran Palace in 2007 suggest

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that a form of transcendentalist spirituality is necessary for the human being’s authentic fulfi llment: Of course, raising a family, contributing to scientific research, teaching, fighting for ideas, especially those of human dignity, leading a country, all these can give meaning to a life. It is these hopes, great and small, “that, day by day, keep us on the path,” to borrow the very words of the Holy Father’s encyclical. But they nevertheless do not provide answers to the human being’s fundamental questions about the meaning of life and the mystery of death. They cannot explain what happens before life and what happens after death. . . . My core conviction, which I have shared, notably, in the book of interviews I published on the Republic, religions, and hope, is that the line separating faith from unbelief is not and never will lie between those who believe and those who do not, because in truth it passes through each one of us. Even those who claim they do not believe cannot at the same time maintain that they do not ponder the essential. The fact of spirituality is embodied in the natural tendency of all men to seek transcendence. The religious feeling is the response of religious people to that fundamental longing that has existed since man has had an awareness of his fate. . . . And then, I also mean that, though a human morality independent of religious morality indisputably exists,

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the Republic has an interest in seeing that a moral reflection inspired by religious convictions also exists: first, because secular morality is always at risk of coming up short when it is not built on a hope that satisfies the longing for the infinite; and second and above all, because a morality devoid of connections to transcendence is more vulnerable to historical contingencies and ultimately to compromise.6 Although President Sarkozy is careful to refrain from arguing in his speech that the state must favor religions at the expense of secular conceptions, the metaphysical position he adopts cannot be counted among the basic principles of a secular state. It is perfectly possible to accept or reject the French president’s position while still being a good citizen. He seems to maintain, however, that authentic fulfillment must necessarily elude people who do not embrace a transcendentalist moral cosmology, which is difficult to reconcile with the equal respect that political authorities must grant to believers and nonbelievers. Although citizen Sarkozy is obviously free to hold such beliefs, it is more problematic when these words are pronounced by the president of the republic in the exercise of his duties. Within the context of contemporary societies marked by moral and religious diversity, it is not religious convictions in themselves that must enjoy a special status but, rather, all core beliefs that allow individuals to structure their moral identity. And, in fact, the equal respect due to religious and secular convictions of conscience is at least partly recognized in case law already. Consider, in par tic u lar,

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exemptions from military ser vice based on objections of conscience. A pacifist whose refusal to resort to violence is intimately linked to his understanding of himself as a moral agent will be able, in a time of obligatory military ser vice, to avail himself of the status of conscientious objector and thereby be exempted from bearing arms.7 Freedom of religion must therefore be seen as a subcategory of freedom of conscience. 8 As Antonio Lamer, former chief justice of the Supreme Court of Canada, wrote in the Edward Books decision: “The purpose of s. 2(a) is to ensure that society does not interfere with profoundly personal beliefs that govern one’s perception of oneself, humankind, nature, and, in some cases, a higher or different order of being. These beliefs, in turn, govern one’s conduct and practices.”9 As the Supreme Court of Canada has implicitly recognized, religious beliefs are not the only ones liable to play the role of a compass and criteria of judgment in an individual’s life. Secular convictions of conscience, as in the case of the pacifist, can just as surely aid the agent in giving a direction to his life and in exercising his faculty of judgment when faced with confl icts of values. What unites these beliefs is that they appeal to the individual conscience, and the person holding them cannot disregard or transgress them without fi nding his sense of moral integrity violated. A vegetarian therefore has the right to demand, within a closed setting such as a prison or an airplane, that she be provided with meatless meals. There does not seem to be any good reason for establishing a hierarchy at the level of rights between a person whose vegetarianism is based on a religion (Hinduism) and one whose vegetarianism stems from a secular moral philosophy (as sentient creatures, animals too

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have rights).10 In both cases, asking someone to abandon her beliefs amounts to inflicting excessive harm. That would amount to interpreting her request as a mere preference that can easily be forgotten or supplanted. The pertinent distinction is therefore not between religious and secular core beliefs and commitments but rather between core commitments and personal preferences that are not intimately connected to my self-understanding as a moral agent. The position defended here is not exempt from difficulties, which are in fact variations of the problem of Pandora’s box. Is not that position excessively inclusive? Does not the combined effect of the subjective conception of freedom of religion and the equal status granted to secular and religious convictions of conscience run the risk of favoring, on one hand, the proliferation of requests for accommodation and, on the other, the instrumentalization of the legal obligation for accommodation?

The Problem of Proliferation

At the heart of the problem of a potential proliferation of requests for accommodation is the difficulty of precisely circumscribing the notion of meaning-giving beliefs and commitments. What defi nes a core conviction is the role it plays in a person’s moral life. That sort of belief and commitment aids the individual in resolving confl icts of values, in sketching out a life plan, and in attributing meaning to his actions, in short, in leading a “good” life. We would therefore have to be able to draw a line of demarcation between core commitments and personal preferences, that is, all those

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things we wish for ourselves but that are not intimately connected to our moral integrity. The reasonable pluralism of values and conceptions of the good and the limits of practical reason make it impossible to simply refer to an objective list of beliefs and values that are on the order of core convictions versus those that fall on the side of more secondary preferences. A conviction of conscience entails an irreducibly subjective dimension: an agent must attribute a special importance to a given belief for it to count as meaning-giving. It is up to him to establish what is central and what is peripheral to his moral identity. As Locke wrote: “No man can, if he would, conform his faith to the dictates of another.”11 Where to draw the line therefore? We know that forcing a vegetarian to eat meat imposes significant moral harm, whereas obliging a university professor to teach at eight thirty in the morning rather than at three thirty in the afternoon as she requested may be disagreeable, but it does not force her to deviate from the path that her conscience sets out for her. Several beliefs and values lie between these two extremes, however, and it is difficult to establish in the abstract where the line between preferences and core commitments lies. Whereas it is not overly controversial to classify beliefs stemming from established philosophical, spiritual, or religious doctrines as meaning-giving, what about the more fluid and fragmented field of values? Should the person who has her heart set on attending to a loved one in the terminal stage of life be classified with the vegetarian or the Muslim who is intent on honoring her moral obligations? The answer to that question is likely yes. It is unclear why a hierarchy ought to be created between, on one hand, convictions stemming from

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established secular or religious doctrines and, on the other, values that do not originate in any totalizing system of thought. Why, in order to be “core,” “fundamental,” or “meaning-giving,” must a conviction originate in a doctrine based on exegetical and apologetic texts? Moreover, attending to an ailing loved one is for some people an experience charged with meaning, one that leads them to face their own finitude and incites them to reassess their values and commitments.12 That question is particularly important because many people do not refer to what John Rawls calls a “general” and “comprehensive” doctrine in the conduct of their lives. For Rawls, a moral conception is general if it applies to a wide range of subjects, and in the limit to all subjects universally. It is comprehensive when it includes conceptions of what is of value in human life, and ideals of personal character, as well as ideals of friendship and of familial and associational relationships, and much else that is to inform our conduct. . . . A conception is fully comprehensive if it covers all recognized values and virtues within one rather precisely articulated system; whereas a conception is only partially comprehensive when it comprises a number of, but by no means all, nonpolitical values and virtues and is rather loosely articulated. Many religious and philosophical doctrines aspire to be both general and comprehensive.13 Individuals adopt a partially comprehensive moral conception when they attempt to establish a certain coherence in their values but do

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not seek to gather them into a complete pattern of thought.14 Finally, some people—perhaps the majority?—refer to a fluid, eclectic set of values that are spelled out and linked to one another to a greater or lesser degree. People certainly appeal to their values when making important decisions, but the arbitration between competing values occurs on an ad hoc basis. Even coherence in one’s various decisions will not necessarily be a preponderant value in all situations. People who refer to a partially comprehensive doctrine or to a more fluid, eclectic set of values are not as likely to see their values as so many obligations or unconditional rules for action. Since the arbitration among values—professional success, family life, and social involvement, for example—not all of which can be realized fully and simultaneously, is a permanent and structural reality in their lives, such people enjoy a much larger margin for maneuvering with respect to their convictions than those who rely on a comprehensive doctrine (whether an ecocentrist philosophy or a monotheist religion). As a result, these individuals will in general adapt their beliefs and values more easily to the circumstances forced upon them and will therefore be less likely to call for mea sures of accommodation. Very often values function more as invitations and incitements than as obligations. With that said, a special circumstance—such as the illness of a loved one—may modify such a person’s priorities and incite him to call for an accommodation or compensation that would allow him to fulfi ll his new role as primary caregiver while still holding onto his job.15 The inclusion of values within the category of “traditional” convictions of conscience—that is, those stemming from philosophical or religious doctrines— contributes nothing toward helping us

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distinguish them from personal preferences. Values, as reasons for action, generally vary in their intensity and in the degree to which we identify and affi liate ourselves with them. Protection of the environment may be an important value for us, but that does not mean it will be sufficient grounds for completely giving up flying. The place of a value in an individual’s moral identity must therefore be assessed in context and in relative terms. Beliefs, values, and preferences can generally be placed on a scale ranging from mere desires that we can easily give up to core convictions. The wish to arrive at a conception of freedom of conscience that is not overly inclusive has led some to conclude that the secular beliefs that can serve as legitimate grounds for accommodation requests are those that share a certain number of properties with religious beliefs, which thus serve a paradigmatic function. At first sight one of the most satisfactory options consists of thinking that the secular beliefs that must be treated exactly the same as religious beliefs are those that are explicitly interested in the ultimate questions of human existence, such as the meaning of life and death, the human being’s place in the universe, the sources of morality, and so on. A person may draw on secular philosophical sources such as Kantian rationalism, American transcendentalism, the deep ecology of Arne Naess, or atheistic existentialism to reply to the fundamental questions of human existence. In the Seeger decision, the U.S. Supreme Court came to the conclusion that objections of conscience to obligatory military ser vice could be based not only on pacifist religious beliefs but also on “a sincere and meaningful belief occupying in the life of its possessor a place parallel to that filled by the God” of religious people.16

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In the same spirit Martha Nussbaum defends an “ultimate questions”-based position. For Nussbaum it is the “faculty with which each person searches for the ultimate meaning of life” that has an intrinsic value and merits protection. That faculty, she writes, “is identified in part by what it does—it reasons, searches, and experiences emotions of longing connected to that search—and in part by its subject matter—it deals with ultimate questions, questions of ultimate meaning. It is the faculty, not its goal, that is the basis of political respect, and thus we can agree to respect the faculty without prejudging the question whether there is a meaning to be found, or what it might be like.”17 Although intuitively plausible, these positions focusing on the “ultimate questions” and on the cognitive faculty that allows us to engage on such a quest possess the flaw of being inflationist or insufficiently prosaic. They are potentially inflationist because they exclude from the field of freedom of conscience people who may come to identify intensely with values but without engaging in profound contemplative, reflective, and systematic meditation directed toward the basic meaning and ends of human life. A man may very well come to believe that if he cannot devote himself to his gravely ill wife or child, his life has no meaning, but he may not necessarily conduct a sustained metaphysical reflection on human existence. Positions focusing on the ultimate questions and on the faculty that allows us to reflect on them seem to be based on a belief, found in both ancient Greek philosophy and in Christian thought, in the superiority of the vita contemplativa over the vita activa. That postulate is especially problematic in a context—that of modernity—where a great many people

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seek to fi nd fulfi llment by becoming involved in various dimensions of “ordinary life” (marriage and family, work, friendship, lifestyle, and so on).18 Similarly, the primacy granted to the contemplative life or to a systematic spiritual search seems to work to the disadvantage of the many who do not refer to any complete and systematic doctrine in the conduct of their lives. That primacy is therefore at odds with the state’s necessary neutrality concerning conceptions of the good. That is why we believe it is rather the intensity of the person’s commitment to a given conviction or practice that constitutes the similarity between religious convictions and secular convictions. That position more easily encompasses core beliefs and commitments that are not linked to a systematic doctrine or are not necessarily the result of a fundamental philosophical reflection on the meaning of existence. All the same, it still does not offer a response to the danger of proliferating requests for accommodation, to which we will return in Chapter 11.

The Problem of Instrumentalization

Another problem inherent in the liberal and subjectivist position is the instrumentalization of freedom of conscience and of the legal obligation for accommodation. What precautions can we take to prevent freedom of religion from being invoked opportunistically or fraudulently? An employee could, for example, strategically invoke freedom of conscience to obtain extra paid vacation or a work schedule that better suits his preferences. The erosion of the distinction between freedom of conscience and freedom of religion, as well as the subjective conception of freedom of religion adopted by the courts,

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makes it easier for someone to claim falsely that he is moved by deeply held convictions; they can also incite someone sincerely motivated by a belief to radicalize it.19 A believer who does not have to demonstrate the objective existence of a belief or its observance by the majority of his coreligionists might be encouraged to claim that he has no margin for maneuvering in the interpretation of his belief and that any compromise imposed on him would excessively restrict his freedom of conscience. For example, an Orthodox Jew who sincerely believes he must take his meals in a sukkah during the festival of Sukkoth could base himself on the subjective conception of freedom of religion to claim that he sincerely believes he must have access to his own sukkah rather than to a sukkah.20 Although the subjective conception of freedom of religion means that the courts cannot rule on the true interpretation of a given religious belief and thereby arbitrate the inevitable confl icts of interpretation pervading all religious communities, the courts can evaluate the sincerity of the claim of someone who invokes freedom of religion. That test of sincerity must not be too intrusive and must not interpret each shift in an individual’s religious practice as indubitable proof of insincerity. Freedom of conscience includes the freedom to reconsider one’s choices of conscience. That being the case, though the assessment of sincerity is fallible, it is an integral part of the normal work of the courts in every field of law and it relies on a set of criteria, including the credibility of the testimony of the person invoking freedom of religion.21 Moreover, it is not enough for the petitioner simply to affirm that he sincerely believes that a given conviction must be translated into action in a particu lar way; he must also explain why that

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conviction or value is intimately linked to his moral integrity and in what way he is attempting to respect it or to live up to it.22 Since granting an accommodation modifies the terms of social cooperation and the distribution of resources, the petitioner must justify his request; in other words, he is faced with the obligation of public justification.

11 THE REASONABLE LIMITS TO FREEDOM OF CONSCIENCE

Broadening the category of meaning-giving beliefs and commitments by integrating into it values not derived from a complete philosophical or religious system may seem to open the door to a potentially excessive number of accommodations and to their instrumentalization. But showing deference to the agent’s sovereignty over his choices of conscience does not make it impossible to limit requests for accommodation. The courts must evaluate not only the sincerity of the belief but also the foreseeable effects of the requested accommodation on the rights of others and on the institution’s ability to realize its aims. Here we enter the realm of what the courts have called “undue hardship,” “reasonable limits,” or “compelling state interest.” A request may be refused in cases where the requested accommodation mea sure would: (a) significantly hinder the institution from realizing its aims (education, care, provision of public ser vices, profit);

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(b) lead to excessive costs or serious functional constraints; or (c) impinge on the rights and freedoms of others.1 The liberal tradition, let us recall, does not conceive of fundamental individual rights and freedoms as being absolute. The exercise of a right can legitimately be restricted to protect the rights of others or to allow the public authorities to legislate on behalf of the public interest. 2 Consider the case of the Jehovah’s Witnesses who, in the name of their freedom of religion and their parental authority, refused to allow a blood transfusion to be administered to their child. Since the blood transfusion was essential for the child’s survival, the hospital administration decided to override the parents’ refusal. The case went before the courts, and the Supreme Court of Canada ruled that the hospital’s decision was lawful even though it had in fact infringed on the parents’ freedom of religion. 3 In weighing the concurrent rights, it found that the child’s right to life, on one hand, and the parents’ religious freedom and parental authority, on the other, could not be reconciled. No other medical treatment could have been substituted for the blood transfusion, and Jehovah’s Witnesses, at least in the parents’ interpretation, do not allow for any exception to the rule prohibiting the injection of another person’s blood. In this instance, respect for the parents’ rights was obviously too great an infringement on the right to life of a minor, namely, their child.4 By contrast, the hospital’s decision infringed on the parents’ rights in a precise and limited context, without completely obliterating them. It was a serious infringement but it did not force the parents to renounce either their religion or their authority over their child. This example demonstrates that serious restrictions to freedom of religion are sometimes legitimate

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even in light of a broad and generous conception of freedom of conscience and religion. Freedom of conscience and parental authority may also be restricted, even within a liberal and pluralist regime of secularism, in cases of confl ict between the parents’ beliefs and the subject matter of certain classes taught in the schools. Religious parents may request that their children be exempted from courses in sex education, ethics, religious culture, or civic education so that they will not be exposed to modes of life and beliefs that contradict or relativize the religious convictions transmitted at home. In such cases the exemptions requested may compromise the realization of one of the important aims of primary and secondary education, namely, to teach tolerance, peaceful coexistence and other civic skills within societies with diverse beliefs and values. 5 Students are future citizens who will have to interact and learn to cooperate with fellow citizens with different sexual identities and value systems, and from different cultures, religions, social classes, and so on. Students will be hindered in that learning process if they are separated out as a function of their parents’ religious beliefs. In addition, since globalization expresses itself as, among other things, a compression of time and space and the intermingling of “here” and “there,” it is more important than ever that the citizens of tomorrow have the knowledge allowing them to understand what is happening abroad and that they develop their capacity for rational dialogue. As a result, an education in tolerance and pluralism will in certain circumstances justify the denial of parents’ requests for exemption and the exposure of their children to subject matter at odds

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with the beliefs transmitted at home. That sort of restriction on freedom of conscience and parental authority is reasonable and justified as long as a particu lar conception of the good life is not imposed on children. For example, a young Hasidic Jew should not have his beliefs directly attacked by the required curriculum; but by the time he leaves school, he ought to have a satisfactory understanding of the basic liberal and democratic principles and institutions, and of the various systems of beliefs and values held by the other members of the society with whom he will sometimes have to interact. With that said, it is probably unreasonable to expect a normative theory to provide a priori an adequate response to all the imaginable empirical cases that might arise. The position we have defended here seems vulnerable to the possibility that an individual may, on the basis of highly eccentric beliefs or expensive tastes, request accommodations or exemptions. Should the occasion arise, however, the petitioner would have to explain why these beliefs are intimately linked to her understanding of what a successful life is and would have to demonstrate that she sincerely holds them. Once that hurdle was overcome, it would have to be proven that the acceptance of her request would not lead to functional constraints or excessive costs, that it would not hinder the aims of the institution or the realization of a preponderant legislative objective, and, fi nally, that it would not significantly restrict the rights and freedoms of others. We cannot rule out a priori the possibility that insincere individuals or those with eccentric beliefs or expensive tastes will not surmount the two justificatory hurdles and obtain measures of accommodation. Moral philosophy delights in far-fetched fictive examples, and since every theory

fr eedom of conscience 104

has its blind spots, we believe that a theory whose weak point is the potential inclusion of highly improbable hypothetical cases is preferable by far to one that excludes core beliefs and values on the pretext that they do not sufficiently resemble paradigmatic core religious or secular convictions.

CONCLUSION The Future of Secularism

The evolution of contemporary democratic societies suggests that it is time to reconceptualize the meaning and ends of secularism. From the age of Saint Augustine to the modern period, the relationship between temporal and spiritual power was foremost, but the challenges of the present era are of a different nature. Although it is generally assumed that the aim of a regime of secularism is still to find the appropriate relationship between the state and religions, its broader and more urgent task at present is to make it possible for democratic states to adapt adequately to the profound moral and spiritual diversity existing within their borders. There do not seem to be any principled reasons to isolate religion and place it in a class apart from the other conceptions of the world and of the good. The state must treat with

secular ism and freedom of conscience 106

equal respect all core beliefs and commitments compatible with the requirements of fair social cooperation. Although the history of the West serves to explain the fi xation on religion, notable even today in public debates—a fi xation that may be nowhere more apparent than in the proliferation of books attacking the credibility of religious beliefs1—the state of contemporary societies requires that we move beyond that fi xation and consider how to manage fairly the moral diversity that now characterizes them. The field of application for secular governance has broadened to include all moral, spiritual, and religious options. But the relationship between religious and nonreligious people is often characterized by incomprehension, distrust, and sometimes even mutual intolerance. Atheists and agnostics have difficulty conceiving why, in the twenty-first century, individuals adhere to religious beliefs whose truth cannot be established through the scientific approach. Religious people believe that “materialists,” in the philosophical sense of the term,2 are incapable of leading an authentic moral life, or of embracing causes that transcend their own selfish interests, and that, consequently, they possess a reductive conception of human existence. At times the misapprehensions and misunderstandings are directed toward particu lar groups. Some view Islam as intrinsically incompatible with democratic and liberal values. Islamists see Western culture as irremediably vile and corrupt. Moral and religious diversity, however, is a structuring and, as far as we can see, permanent characteristic of democratic societies. People espousing different, sometimes irreconcilable representations of the world and value systems must learn to cooperate and resolve their

Conclusion 107

divergences. In some cases individuals’ core beliefs, whether religious or secular, are a source of authentic ethical and political disagreements. Are religious accommodations legitimate? What are the limits to freedom of religion? What must we teach our children, and what are the limits of parental autonomy? What is the status of religious beliefs in public deliberations? Should public agents be allowed to display religious symbols? What should be the place of the majority’s religious symbols and rituals in the public space? Should one limit freedom of expression with regard to the representation or critique of religious traditions? We have argued that social cooperation in diverse societies is rooted in the possibility that reasonable citizens will agree on the basic principles of their political association. The stability and cohesion of these societies thus depend on the will of citizens with differing conceptions of the good to accept the authority of the common principles on which their political institutions are based. In some sense this means expanding the ideal of tolerance that made it possible to put an end to religious confl icts. This type of society requires citizens to disregard the sometimes profound moral and philosophical disagreements they have with their fellow citizens in the name of their more fundamental interest in living in a sufficiently stable and harmonious society. It is, therefore, important to reflect on the civic ethos liable to support such a political morality. It seems reasonable to think that an ethics of dialogue respectful of different metaphysical and moral perspectives is the one best able to support the minimal political morality, or “overlapping consensus,” to which we have alluded on several occasions. Under such an

secular ism and freedom of conscience 108

ethics of dialogue, citizens engage candidly in discussions about the foundations and orientations of their political community, using the explanatory and justificatory language of their choice, while at the same time displaying sensitivity or empathy toward core convictions that are an integral part of their fellow citizens’ moral identity. But how are we to reconcile that ethics of dialogue with the fact that liberal and democratic states also define themselves as “open societies,” that is, societies in which freedom of expression and the vigorous debate of ideas reign? As Karl Popper has pointed out, it is the very institutionalization of freedom of thought and expression that protects these societies from stagnation and from authoritarianism. From time to time, therefore, religious people are exposed to points of view that call into question the validity of their strongly held beliefs or that mock them. Believers have in fact judged some artistic creations offensive, if not overtly blasphemous: think of Salman Rushdie’s Satanic Verses; of the caricatures of Muhammad published in the Danish newspaper Jyllands-Posten and reprinted in some other Western newspapers (notably, and in a particularly obtrusive manner, in the French weekly Charlie Hebdo); and of Martin Scorsese’s and Mel Gibson’s fi lms about Christ. Must we limit freedom of expression in the name of respect for what, in the view of some believers, belongs to the sphere of the sacred? We do not believe so. Except in flagrant cases of defamation or incitement to hatred, the state cannot restrict some people’s freedom of expression on the pretext that ideas or representations have the effect of profaning what, for others, is considered sacred. The pluralist state can adopt neither the general ontology holding that the universe

Conclusion 109

must be understood in terms of the dyad between sacred and profane nor a particu lar conception of the sacred. The democratic and liberal state would be committing a travesty if it claimed the right to rule on such metaphysical questions. Attempts to restrict freedom of expression on the basis of the perceived defamatory or blasphemous character of ideas or artistic creations are therefore morally and legally very fragile. We would certainly not like to live in a society where Salman Rushdie or Richard Dawkins would be censored. Just as freedom of religion does not include the right not to be exposed to religious symbols, 3 the price to be paid for living in a society that protects the exercise of freedom of conscience and expression is the understanding that we will be exposed to beliefs and practices we judge false, ridiculous, or hurtful. With that said, just because we have the right to do x does not mean that doing x is wise or desirable. Is it not to be hoped that when publishing texts or artistic subject matter we will fi rst seek to understand how our speech act will be perceived by others and to anticipate its impact on the social bond? A certain degree of political stability and social cohesion can, of course, be achieved through the institutionalization of fair collective rules, but the effectiveness of these rules is only strengthened by what could be called an ethics of concern for the other. Taking into consideration the viewpoint of others does not necessarily mean avoiding at every turn the display on the public square of ideas that might offend some groups of citizens. Whereas Salman Rushdie’s mockery in the Satanic Verses was situated within a work that offers a compelling portrait of the human condition in the era of

secular ism and freedom of conscience 110

globalization, it is plausible that the reprinting of the caricatures of Muhammad in Charlie Hebdo served only to fan the conflict and to shore up the newspaper staff ’s sense of self-importance.4 The decision of the vast majority of Western media outlets not to fuel the misunderstandings by reprinting the caricatures attests to a wise judgment about the exercise of free speech. Similarly, it is possible for religious leaders to show us how religions give access to a unique way of living in the modern world without suggesting that a life conducted in keeping with a secular outlook is inevitably incomplete or corrupt. That ethical sensitivity cannot be imposed by passing laws, but it can be encouraged by our institutions and practiced and promoted by citizens in their private and associative lives. It is interesting that the two contemporary philosophers most closely associated with the revival of Kant’s practical philosophy, John Rawls and Jürgen Habermas, who once defended more restrictive views, have both arrived at the conclusion that religious perspectives are important sources of ethics that can contribute significantly toward furthering democratic culture. 5 In short, contemporary societies must develop the ethical and political knowledge that will allow them to fairly and consistently manage the moral, spiritual, and cultural diversity at their heart. Those who embrace worldviews such as the great historical monotheisms, the Eastern religions, spiritual eclecticism, aboriginal spiritualities, militant atheism, agnosticism, and so on must learn to coexist and, ideally, to establish bonds of solidarity. We believe that the pluralist political secularism outlined in this book, supported by an ethics of dialogue respectful of the different moral and spiritual options, is best able to promote that learning process.

NOTES

introduction 1. See Gérard Bouchard and Charles Taylor, Building the Future: A Time for Reconciliation. Final Report of the Consultation Commission on Accommodation Practices Related to Cultural Differences (Quebec: CCPARDC, 2008); Marion Boyd, Dispute Resolution: Protecting Choice, Promoting Inclusion (Toronto: Ministry of the Attorney General, 2004); Polygamy in Canada: Legal and Social Implications for Women and Children (Ottawa: Status of Women Canada, 2005); Bernard Stasi, Rapport de la Commission de réflexion sur l’application du principe de laïcité dans la République (Paris: 2003); Nicolas Sarkozy, speech delivered at the Lateran Palace, December 20, 2007; Tariq Modood, “Remaking Multiculturalism after 7/7,” Open Democracy, 28 September 2005, Éthique publique 9, no. 1 (2007) (http://www.opendemocracy.net/confl ict-terrorism/ multiculturalism _2879.jsp); Ian Buruma, Murder in Amsterdam: The Death of Theo van Gogh and the Limits of Tolerance (New York: Penguin,

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2006); Kent Greenawalt, Religion and the Constitution (Princeton: Princeton University Press, 2006 [vol. 1] and 2008 [vol. 2]); Rajeev Bhargava, ed., Politics and Ethics of the Indian Constitution (Oxford: Oxford University Press, 2008). The Muslim countries are not to be outdone: see the stimulating reflections of Abdullahi Ahmed An-Na’im, Islam and the Secular State: Negotiating the Future of Shari’a (Cambridge, Mass.: Harvard University Press, 2008).

1. moral pluralism, neutrality, and secularism 1. Isaiah Berlin, “Two Concepts of Liberty,” in his Four Essays on Liberty (Oxford: Oxford University Press, 1969). 2. Locke notes: “There is only one of these which is the true way to eternal happiness: but in this great variety of ways that men follow, it is still doubted which is the right one. Now, neither the care of the commonwealth, nor the right enacting of laws, does discover this way that leads to heaven more certainly to the magistrate than every private man’s search and study discovers it unto himself.” John Locke, A Letter concerning Toleration, 11th ed. (London: 1812), Electronic Text Center, University of Virginia Library, n.p.,
no t e s to page s 13 – 2 0 113

6. See Charles Taylor, “Identity and the Good,” in his Sources of the Self, Part I, (Montreal: Boréal, 1998), 3–110. 7. Marcel Gauchet, La religion dans la démocratie (Paris: Gallimard, 1998), 47–50. 8. Ibid. 9. See Charles Taylor, A Secular Age (Cambridge, Mass.: The Belknap Press of Harvard University Press, 2007), 2–4, as well as Micheline Milot, “Les principes de laïcité politique au Québec et au Canada,” Bulletin d’histoire politique 13, no. 3 (2005). 10. At various times, parents in Norway, Spain, the United States, Great Britain, Canada, and Quebec have disputed parts of the curriculum, including courses in sex education, citizenship, and religious cultures, on the grounds that the subject matter being taught threatened the religious beliefs they wished to transmit to their children. See, for example, Mozert v. Hawkins County Board of Education, 827 F.2d 1059 (C.A. 6th Cir. 1987); Folgero and Others v. Norway, ECHR, Grand Chamber, application no. 15472/02, June 29, 2007; Chamberlain v. Surrey School District no. 36 [2002], 4 R.C.S. 7100, 2002 CSC 86. On the fate of traditionalist religious groups in liberal democracies, see Jeff SpinnerHalev, Surviving Diversity (Baltimore: Johns Hopkins University Press, 2000). 11. On the idea that society is founded in the sacred, see Émile Durkheim, The Elementary Forms of Religious Life, ed. Mark Sydney Cladis, trans. Carol Cosman (Oxford: Oxford University Press, 2001). 12. Rawls, Political Liberalism, xvi, 36–40.

2. the principles of secularism 1. Combining separation of political and religious powers with respect for freedom of conscience (and association) entails that religious organizations must be seen as autonomous in their fields of jurisdiction,

no t e s to page s 2 1– 23 114

2. 3.

4. 5.

6. 7.

though they remain subject to the obligation to respect fundamental human rights and the laws in force. There is thus a reciprocal autonomy between the public authorities and the religious communities. On one hand, religions do not have a privileged connection to the state. On the other, churches must not be under state control, as they currently are in Turkey, where the government exercises strict oversight of the Sunni Islamic clergy. In the same vein, on the roots of “regalian power” that the French state claims in its relationship with religions, see Jean Baubérot, Histoire de la laïcité en France (Paris: Presses universitaires de France, 2007). Thomas Nagel, “Moral Confl ict and Political Legitimacy,” Philosophy and Public Affairs 16, no. 3 (1987): 215–240. That does not mean that the reasons advanced by citizens in public debate must be purged of all reference to their particu lar system of beliefs and values. All spiritual and moral options must be allowed a hearing in debates bearing on important public issues. Nevertheless, it is unlikely that believers will manage to convince their fellow citizens of the validity of their position if they do not also offer them reasons that can be accepted in the light of different systems of beliefs and values. See, among others, Christopher Eberle, Religious Convictions in Liberal Politics (Cambridge, U.K.: Cambridge University Press, 2002). Martha Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic, 2008), 21–22. See Rawls’s argument on the “burdens of judgment” in view of the conceptions of the good, in John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 54–58. Micheline Milot, Laïcité dans le Nouveau Monde: Le cas du Québec (Turnhout, Belgium: Brepols, 2002), 34. See Nussbaum, Liberty of Conscience, 22–25.

no t e s to page s 23 – 3 2 115

8. Bernard Stasi, Rapport de la Commission de réflexion sur l’application du principe de laïcitié dans la République (Paris: 2003), 9. Rajeev Bhargava argues that Indian secularism is also based on a plurality of values. See Rajeev Bhargava, “Political Secularism,” in A Handbook of Political Theory, ed. John Dryzek, B. Honig, and Anne Philips, 636– 655 (Oxford: Oxford University Press, 2006). 9. A number of German Länder prohibit teachers from wearing the veil, whereas in the United Kingdom the decision is left to the discretion of the schools. See Leslie Seidle’s comparative studies on Germany and the United Kingdom, conducted within the framework of the Commission de Consultation sur les Pratiques d’Acommodements Reliées aux Différences Culturelles and collected in Comparative Research and Analysis Country Profiles, <www.accommodements.qc.ca/ documentation/rapports-experts.html>, accessed May 7, 2007. 10. Henri Pena-Ruiz, Histoire de la laïcité: Genèse d’un idéal (Paris: Gallimard, 2005), 134. 11. Our thanks to Solange Lefebvre for having encouraged us to clarify our position on this question.

3. regimes of secularism 1. Henri Pena-Ruiz, Dieu et Marianne: Philosophie de la laïcité (Paris: Presses universitaires de France, 2005), 225. 2. Régis Debray, Cours de médiologie générale (Paris: Gallimard, 1991), 356. 3. A person can, for example, rationally arrive at the conclusion that there are questions of a metaphysical order that most individuals ponder but to which human reason and science do not manage to offer defi nitive or satisfying responses, or that a worldview in which nothing transcends the human being is worrisome. 4. See Jacques Chirac’s speech on laïcité, December 17, 2003, at the Elysée Palace.

no t e s to page s 3 2 – 3 7 116

5. See law 2004–228 of March 15, 2004, regulating the wearing of symbols or garb displaying a religious affi liation in public elementary and secondary schools, in application of the principle of secularism, as well as the memorandum of May 18, 2004, bearing on the implementation of law 2004–228. 6. Bernard Stasi, Rapport de la Commission de réflexion sur l’application du principe de laïcité dans la République (Paris: 2003), 10. 7. See José Woehrling, “The Open Secularism Model of the BouchardTaylor Commission Report and the Decisions of the Supreme Court of Canada on Freedom of Religion and Religious Accommodation,” in Religion, Culture and State— Canada and Québec, ed. Howard Adelman and Pierre Anctil, (Toronto: University of Toronto Press, 2009). 8. Stasi, Rapport de la Commission de réflexion, 58. 9. It is therefore unlikely that the French law would have withstood a test of proportionality similar to that elaborated for the Canadian courts, in accordance with which: (1) there must be an obvious “rational connection” between the legislative mea sure restricting a right and the objective of the mea sure in question; and (2) the infringement of the right must be as minimal as the realization of the objective allows. See R. v. Oakes [1986], 1 R.C.S. 103. 10. The liberal and pluralist conception of secularism coincides with what Micheline Milot calls the “secularism of recognition.” According to her, the secularism of acknowledgment “is without a doubt one of the various modes of implementation of secularism, the most exacting socially, ethically, and politically.” See Micheline Milot, La laïcité (Ottawa: Novalis, 2008), 65.

4. public sphere and private sphere 1. See Jürgen Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society, trans. Thomas Burger,

no t e s to page s 3 8 – 5 0 117

with the assistance of Frederick Lawrence (Cambridge, Mass.: MIT Press, 1989). 2. The following remark also appears in Jacques Chirac’s speech on secularism, delivered on December 17, 2003: “Moreover, conspicuous symbols, namely, those that, when worn, attract immediate notice and identify one’s religious affiliation, cannot be allowed. These symbols— the Islamic veil, by whatever name it is called, the yarmulke, or an obviously oversized cross—have no place within the walls of the public schools. The public schools will remain secular.” 3. Quebec, legislative bill 95 (2005, chap. 20), modifying various provisions of a religious nature in laws relating to education.

5. religious symbols and rituals in the public space 1. Jacques Chirac’s speech on secularism, December 17, 2003, at the Elysée Palace. 2. Micheline Milot, La laïcité (Ottawa: Novalis, 2008), 99. 3. We do not rule out the possibility that there are other reasons for prohibiting teachers from wearing these symbols, but we believe that those mentioned suffice overall to justify such a prohibition. 4. R. v. S. (R. D.) [1997], 3 R.C.S. 484, paragraph 35, . 5. We have benefited from the analysis of Pierre Bosset on this question. 6. The same applies to practices whose religious content is weak or altogether absent. The Christmas tree, for example, is a symbol of pagan origin without any real religious weight and has been adopted in some very secularized societies. The Christmas holiday itself is celebrated in some non- Christian societies such as Japan. 7. Pierre Bosset, Les symboles et rituels religieux dans les institutions publics, Commission des Droits de la Personne et de la Jeunesse du Québec, November 1999, 20.

no t e s to page s 5 4 – 5 7 118

6. liberal- pluralist secularism: the case of quebec 1. That is also Jean Baubérot’s view in Une laïcité interculturelle: Le Québec, avenir de la France? (La Tour d’Aigues: Éditions de l’Aube, 2008). 2. See Micheline Milot, La laïcité (Ottawa: Novalis, 2008), 69– 70. 3. Catholic and Protestant minorities in the four provinces constitutive of the Confederation enjoyed special protection with respect to the administration of the schools. 4. We are basing ourselves here on Micheline Milot’s narrative in Laïcité dans le Nouveau Monde: Le cas du Québec (Turnhout, Belgium: Brepols, 2002), 80ff. 5. See Milot, La laïcité, 74– 76. 6. Some may point out that a reference to the supremacy of God is contained in the preamble of the Constitution Act of 1982, “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.” Although that reference may reasonably appear misplaced in the eyes of atheists, agnostics, and religious persons who believe that the civil magistrate ought to concern himself exclusively with public affairs, its legal import has thus far proved to be nonex istent. The rights and freedoms recorded in the charters and the definition and distribution of powers specified by the constitution establish de jure the secularism of the Canadian state. That is why reference to God in the preamble has not impelled the courts to favor religious belief at the expense of nonbelief. 7. That is what Louis Balthazar has called “Quebec’s quiet secularism.” See Louis Balthazar, “La laïcité tranquille du Québec,” in La laïcité en Amérique du Nord, ed. Jacques Lemaire, 31–42 (Brussels: Éditions de l’Université de Bruxelles, 1990).

no t e s to page s 5 7– 5 8 119

8. For an overview of the Quebec debate on secularism in the 1990s, see Solange Lefebvre, “Origines et actualité de la laïcité: Lecture socio-théologique,” Théologiques 6, no. 1 (March 1998): 63– 79. 9. See, for example, the view of the Conseil des Relations Interculturelles du Québec (Quebec Intercultural Relations Council), Laïcité et diversité religieuse: L’approche québecoise, opinion presented to the minister of citizenship and immigration, 2004. 10. Laïcité et religion: Perspective nouvelle pour l’école québecoise, report by the Groupe de Travail, Quebec, Ministry of Education, 1999, preface. 11. Recognizing that religion offers believers important spiritual resources, the Groupe de Travail sur la Place de la Religion à l’École suggests that a ser vice providing students with community activities around their shared religious and spiritual life ought to be offered to those who wish to avail themselves of it. 12. Conseil Supérieur de l’Éducation (Higher Board of Education), Pour un aménagement respectueux des libertés et des droits fondamentaux: Une école pleinement ouverte à tous les élèves du Québec, opinion presented to the minister of education, 2005; Comité sur les Affaires Religeuses (Committee on Religious Affairs), La laïcité scolaire au Québec, un nécessaire changement de culture institutionelle, opinion presented to the minister of education, leisure, and sports, 2006. The Stasi Commission also recognized the importance of transmitting tools to students that would allow them to understand religion in its many dimensions: Bernard Stasi, Rapport de la Commission de réflexion sur l’application du principle de laïcité dans la République (Paris: 2003), 14, 15, 63. See also Stephen Prothero, Religious Literacy: What Every American Needs to Know—and Doesn’t (New York: HarperCollins, 2008). On the Ethics and Religious Culture curriculum, see Georges Leroux, Éthique, culture religieuse, dialogue: Arguments pour un programme (Montreal: Fides,

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13.

14.

15.

16.

2007), and Luc Bégin, “Éthique et culture religieuse: Une réponse appropriée au défi du pluralisme,” Éthique publique 10, no. 1 (2008). See Commission des Droits de la Personne et des Droits de la Jeunesse du Québec (Quebec Human Rights and Youth Rights Commission), Le pluralisme religieux au Québec: Un défi d’éthique sociale, February 1995. Conseil du Statut de la Femme (Council on the Status of Women), Réflexion sur la question du voile à l’école (Quebec Gouvernement du Québec, 1995), 39. Although the Conseil du Statut de la Femme has hardened its position on secularism in a recent opinion, it has not reversed its 1995 position on the wearing of the headscarf by Muslim students in the public schools. See Conseil du Statut de la Femme, Droit à l’égalité entre les femmes et les hommes et liberté religieuse (Quebec, Gouvernement du Québec, 2007). As Micheline Milot points out, in Quebec and throughout Canada, “the separation of political and religious powers, the absence of a state religion, neutrality, and secularism (all these expressions can be found in case law) stand as requirements imposed on the state and on public institutions, but they are not defined as constitutional principles or overarching values (as is the case in France for secularism, which is not only a constitutional principle but a value that defines the republic). They appear in some sense subordinated to laws recognized as fundamental.” See Micheline Milot, “Les principes de laïcité politique au Québec et au Canada,” in La laïcité au Québec et en France, ed. Micheline Milot, special issue of Bulletin d’Histoire Politique 13, no. 3 (2005): 19. See the commission’s report by Gérard Bouchard and Charles Taylor, Building the Future: A Time for Reconciliation. Final Report of the Consultation Commission on Accommodation Practices Related to Cultural Differences (Quebec: CCPARDC, 2008), available on its official website, <www

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.accommodements.qc.ca>. As indicated in the acknowledgments to this book, the authors of this book both served on that commission, Charles Taylor as co-president and Jocelyn Maclure as expert analyst.

part 2: freedom of conscience 1. Some portions of the following chapters are taken from Jocelyn Maclure, “Convictions de conscience, responsabilité individuelle et équité,” in Appartenances religieuses, appartenance citoyenne: Un équilibre en tension, ed. Paul Eid, Pierre Bosset, Micheline Milot, and Sébastien Lebel- Grenier (Quebec: Presses de l’Université Laval, 2009). We are grateful to the publisher for permission to use excerpts from that text. 2. John Rawls, A Theory of Justice (Cambridge, Mass.: The Belknap Press of Harvard University Press, 1971), p. 4.

7. the legal obligation for reasonable accommodation 1. Office of the High Commissioner for Human Rights, International Covenant on Civil and Political Rights, adopted on December 16, 1966, by the General Assembly of the United Nations, . 2. In Locke’s words: “But some may ask: ‘What if the magistrate should enjoin anything by his authority that appears unlawful to the conscience of a private person?’ I answer that, if government be faithfully administered and the counsels of the magistrates be indeed directed to the public good, this will seldom happen. But if, perhaps, it do so fall out, I say, that such a private person is to abstain from the action that he judges unlawful, and he is to undergo the punishment which it is not unlawful for him to bear. For the private judgement of any person concerning a law enacted in political matters, for the public good, does not take away the obligation of that law, nor

no t e s to page s 6 7– 6 8 122

3.

4.

5. 6.

deserve a dispensation.” See John Locke, A Letter concerning Toleration, 11th ed. (London: 1812), Electronic Text Center, University of Virginia Library, n.p., . As Pierre Bosset sums it up, in Canadian law the norm of reasonable accommodation is “a legal obligation applicable in a situation of discrimination and which consists of adjusting, within reasonable limits, a norm or practice of universal scope, by granting differential treatment to a person who would otherwise be penalized by the application of such a norm.” See Pierre Bosset, “Les fondements juridiques et l’évolution de l’obligation d’accommodement raisonnable,” in Les accommodements raisonnables: Quoi, comment, jusqu’où? Des outils pour tous, ed. Myriam Jézéquel, 10, emphases (Cowansville, Quebec: Yvon Blais, 2007). Will Kymlicka, Multicultural Citizenship (Montreal: Boréal, 2001) (refer to the English edition); Charles Taylor, “La politique de la reconnaissance,” in Multiculturalisme, ed. Amy Gutman, (Paris: Flammarion, 1999) (refer to the English edition); James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995); Bhikhu Parekh, Rethinking Multiculturalism: Cultural Diversity and Political Theory (Cambridge, Mass.: Harvard University Press, 2000). R. v. Big M Drug Mart Ltd. [1985], 1 R.C.S. 295. In the Edward Books case, the Supreme Court upheld an Ontario law prohibiting businesses from opening on Sunday. According to the court, whereas the aim of the old Lord’s Day Act was to encourage worship, the object of the law regarding retail business holidays was secular: it “was enacted for the secular purpose of providing uniform holidays for retail workers.” R. v. Edward Books and Art Ltd. [1986], 2 R.C.S. 713, . The court recognized, however, that the choice of Sunday favored persons who must abstain from work on that day for

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religious reasons. The position is therefore acceptable only if it is accompanied by an exemption provided for in the law (as was the case in the law contested by the appellants) or by an obligation to accommodate those who, for religious reasons, must have a day of rest other than Sunday. 7. Jocelyn Maclure, “Multiculturalism and Political Morality,” in The Research Companion to Multiculturalism, ed. Duncan Ivison (Farnham, U.K.: Ashgate, 2010).

8. are religious beliefs “expensive tastes”? choices, circumstances, and individual responsibility 1. Mouvement Laïque Québécois, “Les demandes d’accommodements religieux sont irrecevables,” Cité laïque 8 (Winter 2007), <www.mlq .qc.ca>, accessed September 20, 2007. In political philosophical debates, Brian Barry argues that religious practice is the result of a free and voluntary choice, whereas Bhikhu Parekh maintains that it lies in the realm of circumstances. For a critical reflection on that way of framing the debate, see Susan Mendus, “Choice, Chance, and Multiculturalism,” in Multiculturalism Reconsidered: Culture and Equality and Its Critics, ed. Paul Kelly (Cambridge, U.K.: Polity, 2002). 2. That moral intuition lies at the root of the normative theory of “luck egalitarianism,” defended in different ways by such authors as Ronald Dworkin, G. A. Cohen, and Richard Arneson. See Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Cambridge, Mass.: Harvard University Press, 2000); G. A. Cohen, “On the Currency of Egalitarian Justice,” Ethics 99 (1989): 906– 944; Richard Arneson, “Equality and Equal Opportunity for Welfare,” Philosophical Studies 56 (1989): 77– 93. For a persuasive critique of the attempt to erect the distinction between choice and circumstance

no t e s to page s 7 2 – 76 124

3. 4.

5. 6. 7.

8.

into a general principle of justice, see Samuel Scheffler, “What Is Egalitarianism?” Philosophy and Public Affairs 31, no. 1 (2003): 5–39; Elizabeth Anderson, “What Is the Point of Equality?” Ethics 109, no. 2 (1999): 287–337. Brian Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge, Mass.: Harvard University Press, 2001), 35. Ibid., 37. In a development that appears surprising at first glance, the U.S. Supreme Court Justice Antonin Scalia, reputed for his conservatism, arrived at the same conclusion as Barry on the subject of religious accommodations, in the very controversial Smith decision of 1990. Writing for the majority, Scalia argued that the First Amendment of the United States Constitution protects religious beliefs but allows states to regulate religious behaviors; he argues in particu lar that individuals cannot invoke their religious beliefs to evade the authority of constitutionally valid laws. For Justice Scalia, exceptions and other accommodations are, generally speaking, unfair and constitute a threat to political stability. See Martha Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic, 2008), 153–155. Barry, Culture and Equality, 34. Ibid., 35–36. On the multiplicity and irreducibility of values, see Thomas Nagel, “The Fragmentation of Value,” in his Mortal Questions (Paris: Presses universitaires de France, 1985) (refer to English edition). Our position is somewhat similar to Bernard Williams’s critique of utilitarian ethics. As Williams writes, “because our moral relation to the world is partly given by such [moral] feelings, and by a sense of what we can or cannot ‘live with,’ to come to regard these feelings from a purely utilitarian point of view, that is to say, as happenings outside one’s moral self, is to lose a sense of one’s moral identity; to lose,

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9.

10.

11.

12.

in the most literal way, one’s integrity. At this point, utilitarianism alienates one from one’s moral feelings.” See Bernard Williams, “A Critique of Utilitarianism,” in Utilitarianism: For and Against, ed. J. J. C. Smart and Bernard Williams, 103–104 (Cambridge: Cambridge University Press, 1973). For a different defense of the obligation for accommodation based on freedom of religion, a defense also grounded in the notion of “moral integrity,” see Paul Bou-Habib, “A Theory of Religious Accommodation,” Journal of Applied Philosophy 23, no. 1 (2006): 109–126. Mouvement Laïque Québécois, report presented to the Commission de consultation sur les pratiques d’accommodement reliées aux différences culturelles, October 16, 2007, 12. For a decision granting an exemption to two Sunni police officers who wanted to wear beards for religious reasons, written by Samuel Alito while he was circuit judge for the U.S. Court of Appeals, see Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999). Since moral beliefs are not necessarily “metaphysical” in a strong sense, the meaning of that position is not altogether clear.

9. the subjective conception of freedom of religion and the individualization of belief 1. Syndicat Northcrest v. Amselem [2004], 2 R.C.S. 551, 2004 CSC 47, . 2. Ibid. 3. On the personalization of belief, see, for example, Reginald Bibby, La religion à la carte (Montreal: Fides, 1998). 4. William James, The Varieties of Religious Experience (New York, 1902), Electronic Text Center, University of Virginia Library, 30,
no t e s to page s 8 4 – 8 7 126

.virginia .edu/etcbin/toccer -new2?id=JamVari .sgm& images=images/ modeng& data=/texts/english/modeng/parsed&tag=public&part=2& division=div1>. See also Charles Taylor, Varieties of Religion Today: William James Revisited (Montreal: Bellarmin, 2003). 5. Syndicat Northcrest v. Amselem. 6. James maintains that “we may very likely fi nd no one essence” of religion but, rather, “many characters” that may have a greater or lesser place in the varieties of religious experience. See James, The Varieties of Religious Experience, 27. The Wittgensteinian concept of “family resemblance” proves to be more adequate than that of “essence” for defining what religion or the religious experience is. On the difficulty of finding a legal definition of religion, see Kent Greenawalt, Religion and the Constitution, vol. 1: Free Exercise and Fairness (Princeton: Princeton University Press, 2006), 124–156.

10. does the legal obligation for accommodation favor religion? religious and secular convictions of conscience 1. Joseph Story, Commentaries on the Constitution of the United States, ed. Melville M. Bigelow, 5th ed. (Boston, Mass.: Little, Brown, 1891), paragraphs 1871, 1868, and 1865, . We wish to thank Andrew Koppelman for drawing our attention to Justice Story’s Commentaries and to the evolution of the status of Christianity in public life in nineteenth-century America. 2. A movement promoting openness to other religions, or even to the absence of religious beliefs, took shape as the century advanced. In response the National Reform Association was created in 1863 with the mission of fighting to maintain the Christian character of the nation and of the U.S. government. The goal of the orga ni zation was

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defined as follows: “The object of this Society shall be to maintain existing Christian features in the American Government . . . to secure such an amendment to the Constitution of the United States as will declare the nation’s allegiance to Jesus Christ and its acceptance of the moral laws of the Christian religion, and so indicate that this is a Christian nation, and place all the Christian laws, institutions, and usages of our government on an undeniably legal basis in the fundamental laws of the land.” Constitution of the National Reform Association, sdapillars.org/media/NRAconstitution.pdf>, accessed May 8, 2009. See also Christian Smith, The Secular Revolution (Berkeley: University of California Press, 2003). 3. Church of the Holy Trinity v. United States, 143 U.S. 475–471, . In 1931 the Supreme Court once again declared that Americans constitute “a Christian people.” In 1932 William O. Douglas, considered one of the most liberal justices in the history of the Supreme Court, also declared: “We are a religious people whose institutions presuppose a Supreme Being.” Quoted in Ronald Dworkin, “Religion and Dignity,” in his Is Democracy Possible Here? (Princeton: Princeton University Press, 2006), 62. 4. That general approbation of religion can, in particular, translate into financial support for religious communities. The theory of “nonpreferentialism” was defended by, among others, William Rehnquist, chief justice of the Supreme Court of the United States from 1989 to 2005. See Martha Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic, 2008), 109. 5. Wisconsin v. Yoder et al., Supreme Court of the United States, 406 U.S. 205, May 15, 1972, .

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6. Speech by Nicolas Sarkozy at the Lateran Palace, December 20, 2007. 7. In the Welsh decision, pronounced during the Vietnam War, the majority maintained that the status of conscientious objector was to be granted to “all those whose consciences, spurred by deeply held moral, ethical, or religious beliefs, would give them no rest or peace if they allowed themselves to become a part of an instrument of war.” Welsh v. United States [1970], 398 U.S. 333–341, . See also Kent Greenawalt, Religion and the Constitution (Princeton: Princeton University Press, 2006), vol. 1: Free Exercise and Fairness, chap. 4. 8. The idea is not to claim that, in semantic terms, religious beliefs can in no way be distinguished from secular convictions of conscience but, rather, to argue that they belong to the same normative category. Our position converges here with that of Ronald Dworkin. According to Dworkin, “A tolerant secular community must therefore fi nd its justification for religious freedom in a more basic principle of liberty that generates a more generous conception of the spheres of value in which people must be left free to choose for themselves.” See Dworkin, “Religion and Dignity,” in his Is Democracy Possible Here?, 61. 9. R. v. Edward Books and Art Ltd. (emphasis added), . In the same spirit, article 9 of the European Convention on Human Rights stipulates that “everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance” (emphases added).

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10. For a judgment in that vein, see the decision of the Federal Court of Canada in the case of Maurice v. Canada (P. G.) [2002], 210 D.L.R. (4th) 186. 11. John Locke, A Letter concerning Toleration, 11th ed. (London, 1812), Electronic Text Center, University of Virginia Library, n.p., . 12. See Isabelle Dumont, Serge Dumont, and Suzanne Mongeau, “Endof-Life Care and the Grieving Process: Family Caregivers Who Have Experienced the Loss of a Terminal-Phase Cancer Patient,” Qualitative Health Research 18, no. 8 (2008): 1049–1061. 13. John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 13. 14. Ibid. 15. It could reasonably be argued that this type of case poses a challenge to public policy rather than a legal obligation for accommodation. In this view, social policies such as fi nancial support for primary caregivers and mea sures aimed at better reconciling work and family life would be more appropriate than accommodations on a case-bycase basis. People are increasingly being called on to care for loved ones, and this makes it imperative to develop public policies aimed at supporting them in that role. But that does not mean that a person in a specific situation could not cite the value he grants to his role as primary caregiver to call for an accommodation mea sure. On the psychological distress experienced by primary caregivers, see Dumont et al., “End- of-Life Care and the Grieving Process.” 16. U.S. v. Seeger [1965], 380 U.S. 163 (emphasis added), .

no t e s to page s 9 6 – 9 9 130

17. Nussbaum, Liberty of Conscience, 168–169. 18. See Charles Taylor, “The Affirmation of Ordinary Life,” in his Sources of the Self, Part III (Paris: Seuil, 1998), 211–304. 19. For a complementary reflection, see Jean-François GaudreaultDesbiens, “Quelques angles morts du débat sur l’accommodement raisonnable à la lumière de la question du port de signes religieux à l’école publique: Réflexions en forme de points d’interrogation,” in Les accommodements raisonnables: Quoi, comment, jusqu’où?, ed. Pierre Bosset, Myriam Jézéquel, et al. (Cowansville, Quebec: Yvon Blais, 2007). 20. In the Amselem decision, Justice Bastarache was not persuaded that the plaintiffs sincerely believed they had an obligation to possess their own sukkah on their balcony. In his minority opinion, he argued that though freedom of conscience protects the practice of celebrating in a sukkah, it does not necessarily confer the right to possess one’s own individual sukkah. Syndicat Northcrest v. Amselem, paragraph 123. 21. Ibid., paragraphs 51–55. 22. In the Maurice case, Justice Campbell of the Federal Court of Canada pointed out that for a prisoner to be able to cite a secular conviction of conscience as grounds for obtaining a vegetarian diet, “cogent evidence must be produced to prove the conscientious belief to a balance of probabilities. On the evidence in the present case, I have no difficulty fi nding that the Applicant does have a strongly held belief regarding the consumption of animal products. The Applicant’s numerous requests and grievances regarding this issue, the extensive time and effort he has expended on this judicial review, as well as his sustained efforts to maintain a vegetarian diet, is strong evidence that he holds a conscientiously held belief that falls

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under the meaning of ‘conscience’ under s.2(a) of the Charter. In my opinion, both the Charter and the Corrections and Conditional Release legislative scheme entitle the Applicant to a vegetarian diet.” Maurice v. Canada, paragraph 15, .

11. the reasonable limits to freedom of conscience 1. For a more sustained reflection on the external limits on requests for accommodation, see Gérard Bouchard and Charles Taylor, Building the Future: A Time for Reconciliation. Final Report of the Consultation Commission on Accommodation Practices Related to Cultural Differences (Quebec: CCPARDC, 2008), 162–166; also see Pierre Bosset, “Limites de l’accommodement raisonnable: Le droit a-t-il tout dit?” Éthique publique 9, no. 1 (2007): 165–168. 2. See John Stuart Mill, On Liberty, ed. Gertrude Himmelfarb (Harmondsworth, Middlesex, U.K.: Penguin, 1982); also see Ronald Dworkin, “Taking Rights Seriously,” in his Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1978). According to the provision of article 1 of the Canadian Charter on Rights and Freedoms, fundamental rights and freedoms can be “subject . . . to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” As Jürgen Habermas has argued, the political legitimacy of constitutional democracies rests on the permanent tension between the principles of popu lar sovereignty and of the rule of law. See Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge, Mass.: MIT Press, 2001). 3. B. (R.) v. Children’s Aid Society of Metropolitan Toronto [1995], 1 R.C.S. 315. 4. Note that a person of legal age may refuse medical treatment.

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5. Stephen Macedo, “Liberal Civic Education and Religious Fundamentalism: The Case of God v. John Rawls?” Ethics 105, no. 3 (1995); Colin Macleod, “Toleration, Children and Education,” Educational Philosophy and Theory 41 (2010).

conclusion 1. In reaction to the politicization of religion observed in certain religious movements, several authors, many with scientific backgrounds, have published books critical of religion and have sparked broad debates in the public sphere. See Sam Harris, The End of Faith: Religion, Terror, and the Future of Reason (New York: W. W. Norton, 2004); Richard Dawkins, The God Delusion (Boston, Mass.: Houghton Miffl in, 2006); Daniel C. Dennett, Breaking the Spell: Religion as a Natural Phenomenon (New York: Viking, 2006); Christopher Hitchens, God Is Not Great: How Religion Poisons Everything (New York: Hachette, 2007); Victor J. Stenger, God, the Failed Hypothesis: How Science Shows That God Does Not Exist (Amherst, N.Y.: Prometheus, 2008); A. C. Grayling, Against All Gods: Six Polemics on Religion and an Essay on Kindness (London: Oberon, 2007). See also Bill Maher’s documentary fi lm Religulous (2008). 2. That is, people who seek to explain all phenomena presented to human consciousness without resorting to immaterial or supernatural entities such as the “soul” or “God.” 3. See Gidon Sapir and Daniel Statman, “Why Freedom of Religion Does Not Include Freedom from Religion,” Law and Philosophy 24 (2005): 467–508. 4. The documentary devoted to the prosecution of Charlie Hebdo for reprinting the caricatures clearly attests to the newspaper staff ’s self-perception. They saw themselves as the valiant defenders of free-

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dom of expression in a Western world that had lost the courage of its convictions. See Daniel Leconte’s documentary C’est dur d’être aimé par des cons (2008). 5. John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 310–318; Jürgen Habermas, “Faith and Knowledge,” in his The Future of Human Nature (Cambridge, U.K.: Polity, 2002).

ACKNOWLEDGMENTS

In February 2007, the government of Quebec set up the Commission de Consultation sur les Pratiques d’Accommodement Reliées aux Différences Culturelles (CCPARDC— Consultation Commission on Accommodation Practices Related to Cultural Differences; see the official website of the commission: www.accommodements.qc.ca). At the time of the commission’s creation, the place of religion in the public sphere and, in particu lar, of requests for accommodation based on religion had been prompting public debate in Quebec for nearly a year. This book had its start within the context of the CCPARDC. Both of us had the honor of being part of that commission, Charles Taylor as co-president and Jocelyn Maclure as expert analyst. Our most important mandate in drawing up the commission’s final report was to write the chapter on secularism. This book emerged from that chapter. Obviously a public report is not a philosophical treatise. The

ac k now l edgm en ts 136

report of a government commission must be clear, accessible, concise, and, above all, entirely devoted to understanding the social and political issues it is supposed to clarify and identifying concrete courses of action. Such a report, therefore, must confine itself to the essential and leave out a number of questions. Our first objective here is to explore more thoroughly the views outlined in Chapter 7 of the final report and to pursue our reflection in new directions. Everything would seem to indicate that current research in the human and social sciences is experiencing a major revival of theoretical interest in secularism, in the forms of religious experience, and in how to handle a diversity of beliefs (secular, religious, and spiritual), a revival to which we would like to contribute. We wish to thank Gérard Bouchard, co-president of the CCPARDC and co-author of the final report, for the understanding he has shown regarding our proposal. It goes without saying that the authors alone are entirely responsible for the ideas expressed in this book. The CCPARDC, though it conducted its activities in a sometimes difficult social and political context, proved to be an extraordinary learning opportunity and chance for dialogue. We thank all those who have been associated with it, particularly its staff and board of experts. We have also greatly benefited from the discussions we had with several colleagues over the last few years, including Micheline Milot, Jean Baubérot, Rajeev Bhargava, Tariq Modood, Daniel Weinstock, Pierre Bosset, and José Woehrling. We also thank François Côté-Vaillancourt, Julien Delangie, and Ophélie Desmons for their valuable work as research assistants, as well as Lindsay Waters, Hannah Wong, and the entire staff at Harvard University Press. Finally, our thanks go to Isabelle and Aube for their unerring and invaluable support.

INDEX

1905 law of separation, 22, 28, 40 Accommodation, 23; based on religious beliefs, “religious accommodation”, 4, 22, 34, 62– 63, 65– 67, 69– 72, 78, 83– 84, 85, 107; and freedom of conscience, 4, 23, 62– 63, 67; and equality and social justice, 4, 34, 64, 66– 68, 70– 73, 73– 75, 75– 80; based on secular beliefs, 4, 63, 94– 95; as preferential treatment, 4, 64, 70; for minority religious beliefs, 49, 51, 62– 63, 66, 69– 70; as legal obligation, 65– 68, 72; for physical disabilities, 69– 70; Accommodation as moral obligation, 75– 80; based on convictions of con-

science, 78– 79; Accommodation as favoring religion, 85– 91. See also Indirect discrimination; Instrumentalization of the legal obligation for accommodation; Limits to request for accommodation; Reasonable accommodation Agreement about basic political principle, 5, 12–18, 89, 103, 107 Aims of secularism, 3, 4, 20–26, 31–35, 41, 63, 105. See also Ends of secularism; Principles of secularism Amselem, 81, 83, 84 Atatürk, Kemal, 2, 38

index 138 Balance between respect for moral quality and protection of freedom of conscience, 63 Barry, Brian, 72, 74– 75 Baubérot, Jean, 20n1, 54n1, 136 Berlin, Isaiah, 10n1 Bouchard, Gérard, 2n1, 33n7, 60n16, 101n1, 136 Burqa, 46 Calendar, 51, 67– 68, 73 Canada, 1, 50, 63, 66, 68; Supreme Court, 47, 81, 90, 101; Federal Constitution, 55 Canadian Charter of Rights and Freedoms, 56, 82 Chirac, Jacques, 43 Choice, 69– 73 Choice of conscience, 11, 21, 31, 82, 98, 100 Civic ethos, 5, 107 Civic identity, 31, 34 Civic integration, 29, 31–32 Civil religion, 14 Cohesion, 32, 67, 107, 109 Commission de consultation sur les pratiques d’accommodement reliées aux différences culturelles (Commission Bouchard-Taylor), 60, 78, 135, 2n1, 60n16, 101n1 Conscientious conviction, 4. See also Conviction of conscience; Core or meaning-giving beliefs and commitments; Preponderant

axiological commitments; Reasons of conscience Conspicuous religious symbol, 28, 32–33, 44–45, 73 Conviction of conscience, 13, 16, 44–45, 50, 73, 74, 80, 85, 89– 90, 91, 92, 94. See also Conscientious conviction; Core or meaninggiving beliefs and commitments; Preponderant axiological commitments; Reasons of conscience Core or meaning-giving beliefs and commitments, 12–14, 31, 75– 80, 89, 91, 92– 97, 100, 104, 106–108. See also Conscientious conviction; Conviction of conscience; Preponderant axiological commitments; Reasons of conscience Dawkins, Richard, 109 Debray, Régis, 30 Deep ecology, 12, 95 Denmark, 2, 26, 108 Diefenbaker, John, 56 Discrimination, 25, 56, 66– 67, 73– 80. See also Indirect discrimination Diversity (moral and religious diversity), 1–5, 10, 29, 31, 36, 41, 46, 48, 53–57, 62, 68, 84, 89, 105–107, 110 Duplessis, Maurice, 51

index 139 Emancipation, 29–34 Ends of secularism, 23–26, 28–30, 41, 59– 60, 105. See also Aims of secularism; Principles of secularism Equality of condition, 70– 72 Equality of opportunity, 70– 72, 73 Ethics of dialogue, 107–108 Excessive cost, 101–104 Expensive taste, 69– 80, 103 Fact of reasonable pluralism, 10. See also Moral pluralism Faculty of judgment, 10, 13, 76, 90 Foreseeable effects of the requested accommodation, 100–104 France, 26, 42; wearing of “conspicuous” religious symbol, 1, 28, 33; secularism as antireligious position, 5, 14, 23, 43; law of 1905, 22, 40; Stasi report and commission, 23, 32–33, 38; secularism as constitutional principle and identity marker, 32, 44, 59. See also Sarkozy Nicolas; Chirac, Jacques; Republican regime of secularism Functional constraint, 101–104 Galston, William, 11n4 Gauchet, Marcel, 14 General and comprehensive doctrine, 93– 94 Germany, 17, 24, 63 Gibson, Mel, 108

Habermas, Jürgen, 37n1, 101n2, 110 Headscarf, 1, 24, 57, 59, 77 Hijab, 25, 38, 46, 58, 69 Impartiality, 44–48 India, 2, 48 Indirect discrimination, 52, 66– 67, 73– 80 Individualization of belief, 83– 84 Individual responsibility, 69– 71 Institutional arrangements, 3, 20–26, 29, 41, 59. See also Means of secularism; Operative modes of secularism Instrumentalization of the legal obligation for accommodation, 80, 91, 97– 99, 100 Integration, 2, 45, 56, 59 James, William, 84 Jehova’s Witness, 55, 101 Kant, Emmanuel, 12, 15, 95, 110 Lamer, Antonio, 90 Liberal-pluralist regime of secularism, 27–35, 39, 41, 43, 52, 53, 57– 60, 63, 102, 110 Limits of practical reason, 21, 81, 92 Limits to request for accommodation, 100–104 Locke, John, 10, 23, 66, 86, 92

index 140 Maclure, Jocelyn, 62, 60n16, 68n7, 135 Means of secularism, 19–26, 28–29, 41, 59. See also Institutional arrangements; Operative modes of secularism Mill, John Stuart, 10 Milot, Micheline, 22, 55, 136 Montesquieu, 23 Moral agent, 16, 81, 90– 91 Moral autonomy, 10–11, 16, 21, 31, 81, Moral harm, 77, 91, 92 Moral identity, 13, 76– 80, 89, 92, 95, 108 Moral integrity, 76– 80, 90, 92, 99 Moral pluralism, 9–11, 63. See also Reasonable pluralism Mouvement Laïque Québecois / Quebec Secular Movement (MLQ), 70, 78– 79 Multiculturalism, 2, 67– 68 Naess, Arne, 95 Nagel, Thomas, 21n2, 76n7 Neutrality: appearance of, 25, 44–48; of the state, 3, 9, 19, 27–29, 42, 58, 59; of the state toward conceptions of the good, 9, 11–17, 22, 86, 97; of the state toward religions, 9, 19, 20, 22, 28–29, 55; of the state toward religious and non-religious citizens, 9, 20–21, 23, 31, 89; of public institutions, 23–24, 37–40, 42–48, 49; of public spaces, 37–40, 49–52; of state

officials, 42–48; from a cultural or religious point of view, 67– 68, 73– 75; of effects, 74– 75 Niqab, 46 Nussbaum, Martha, 21, 23, 96 Objective conception of belief, 81– 84, 98 Open secularism, 2, 24–25, 27–35, 57– 60. Operative modes of secularism, 19–26, 27, 28. See also Ends of secularism; Means of secularism Overlapping consensus, 11, 15–17, 107 Pacifist, 63, 90, 95 Pena-Ruiz, Henri, 24–25, 30 Personal conception of belief. See Subjective conception of belief Personal religion, 84 Person with a physical disability, 66– 67, 69 Place of religion in the public spaces, 3, 4, 37–40, 41–52, 107 Police officer, 47–48, 78 Politics of recognition, 67– 68 Popper, Karl, 108 Preference, 4, 13, 71– 73, 75– 80, 92– 97 Pregnant woman, 66, 69 Preponderant axiological commitments, 76. See also Conscientious conviction; Conviction of

index 141 conscience; Core or meaninggiving beliefs and commitments; Reasons of conscience Primacy of religion, 86– 87 Principle of nonestablishment, 23, 55, 87 Principles of secularism, 3, 19–26, 27, 41, 43, 53, 59. See also Aims of secularism; Ends of secularism Private sphere, 36–40, 43 Privatization of religion, 19, 49 Protestantization of belief, 83– 84 Proulx, Jean-Pierre, 57–58 Quebec, 1, 14, 18, 28, 37, 39, 63; religious symbols in public institutions and public places, 50–51; liberal-pluralist secularism: the case of Quebec, 53– 60; Charter of Human Rights and Freedom, 82. See also Mouvement Laïque Québecois Quebec Charter of Rights and Freedoms, 56, 82 Rational autonomy, 29 Rawls, John, 10–11, 93, 110 Reasonable accommodation, 1, 34, 51, 59, 65– 68, 72– 73, 74. See also Accommodation Reasonable limits to freedom of conscience, 100–104 Reasonable pluralism, 92. See also Moral pluralism

Reasons of conscience, 77– 79. See also Conscientious conviction; Conviction of conscience; Core or meaning-giving beliefs and commitments; Preponderant axiological commitments Regime of secularism, 9, 26, 27–35, 53, 102, 105 Religious heritage, 49–52 Renouvier, Charles-Bernard, 14 Republican regime of secularism, 2, 14, 27–35, 36–39, 42–43, 59 Rousseau, Jean-Jacques, 14 Rushdie, Salman, 108, 109 Sarkozy, Nicolas, 2n1, 1, 87– 89 School, 10, 16, 24, 28, 32–33, 37–40, 46, 50, 57–59, 67, 69, 73, 74, 75, 87, 102–103 Scorsese, Martin, 108 Second- class citizen, 9, 13, 20 Secularization: political secularization (laïcisation), 15–16, 54, 55–56; social secularization (sécularisation), 15–16, 54, 55–56 Self-respect, 76 Separation of church and state, 2–3, 9, 19, 20, 22–23, 26–28, 29, 36, 40, 55, 57, 59, 86 Sincerity, 82– 83, 95– 98, 100–103 Singer, Peter, 78 Social justice, 4–5, 63– 64, 68, 70 Social unity, 5, 17–18 Soviet Union, 5

index 142 Stability, 15–17, 54, 86, 107, 109 Stasi, Bernard, 2n1, 23, 32–33 State officials, 42–48 Story, Joseph, 86 Subjective conception of belief, 81– 84, 91, 97– 98 Sukkah, 98 Supreme Court of Canada, 47, 81– 83, 90 Switzerland, 63 Taylor, Charles, 2n1, 13n6, 16n9, 33n7, 60n16, 67n4, 84n4, 97n18, 101n1, 135

Teacher, 24–25, 46, 59 Tolerance, 2, 5, 54–57, 86, 102, 107 Turkey, 2, 14, 38, 42, 63 United Kingdom, 24, 26, 63 United States, 2, 5, 18, 26, 66; First Amendment of the United States Constitution, 22, 55, 86 Van Gogh, Theo, 2 Vegetarianism, 63, 73, 77– 78, 90, 92