U.S. Supreme Court won’t hear ‘Sister Wives’ polygamy appeal

Reality tv meets the justice system, but on a technicality:

The U.S. Supreme Court said Monday it won’t hear an appeal from the family on TV’s “Sister Wives” challenging Utah’s law banning polygamy.

The decision ends the family’s long legal fight to overturn a seldom used and unique provision of Utah’s law that the Browns and other polygamous families contend has a chilling effect by sending law-abiding plural families into hiding because of fear of prosecution.

The provision bars married people from living with a second purported “spiritual spouse” even if the man is legally married to just one woman, making it stricter than anti-bigamy laws in other states.

The reality TLC cable channel TV show follows the lives of Kody Brown, his four wives and all their children. When it debuted in 2010, it was considered ground-breaking by offering viewers a glimpse into how a plural family navigates the unique complexities of the arrangement.

Utah prosecutors say they generally leave polygamists alone but that they need the ban to pursue polygamists for other crimes such as underage marriage and sexual assault. Only 10 people were charged with violating the law between 2001 and 2011, prosecutors say.

The Utah Attorney General’s Office declined comment on the Supreme Court’s denial of the case, which the justices issued without comment.

The saga between the Browns and Utah officials began in September 2010 when the first episode aired of the TLC show, “Sister Wives.” A county prosecutor opened an investigation, leading the Browns to leave their longtime of Lehi, Utah, in 2011, to settle in Las Vegas where they still live today.

That same year, the Browns filed a lawsuit calling the opening of the investigation government abuse. The case was closed without filing any charges.

In 2013, the Browns scored a key legal victory when a federal judge in Utah ruled the law violated polygamists’ right to privacy and religious freedom.

But an appeals court in Denver decided last year that the Browns could not sue because they were not charged under the Utah law. It did not consider the constitutional issues. That ruling will now stand.

The Brown’s attorney, Jonathan Turley, said in a statement posted on his blog that he and the family are disappointed but not surprised because the high court is on a pace to hear less than 1 per cent of the 7,500 appeals it is likely to receive this term.

Turley emphasized that an appeals court ruling was not made based on the merits of the Browns’ assertion that Utah’s law violates their rights of speech and religion.

“Our victory in Salt Lake City will remain as a cautionary decision for legislators who wish to marginalize or sanction this community in the future,” Turley said. “It has been a long road for all of us and it is not the end of the road. Plural and unconventional families will continue to strive for equal status and treatment under the law.”

Kody Brown is legally married to Robyn Brown, but says he is “spiritually married” to three other women. They live together in a plural relationship and belong to a religious group that believes in polygamy as a core religious practice. Their show continues to air on TLC.

Source: U.S. Supreme Court won’t hear ‘Sister Wives’ polygamy appeal – Macleans.ca

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Advocates for minority Supreme Court judge disappointed by Trudeau’s pick

Understandable reactions but equally understandable that the government chose to give priority to regional representation and bilingualism.

However, it will be more important to assess the diversity of future appointments to the lower courts, which I expect will include visible minorities and Indigenous peoples (as did with the initial 15 appointments).

And nice to see my IRPP article, Diversity among federal and provincial judges – Policy Options,  continues to provide useful background data:

The Liberal government may have made history by nominating a Newfoundlander to Canada’s top court — but disappointed advocates say a more critical opportunity has been missed to add racial diversity to Canada’s predominantly white judiciary.

“It’s another white male . . . It’s the exact thing we’ve been doing for years,” said Koren Lightening-Earle, president of the Indigenous Bar Association, adding she would have been “borderline happy with any person of colour.”

Prime Minister Justin Trudeau announced Monday that Justice Malcolm Rowe from Newfoundland and Labrador has been nominated for the Supreme Court of Canada. If formally named to the court, it will be a historic first for the province.

However, scholars and aboriginal jurists had hoped Trudeau’s new selection process might set aside the constitutional convention of regionally based appointments, and focus on putting an aboriginal or black judge into the job.

Lightening-Earle said while Newfoundlanders and Labradorians have waited a number of decades for a representative on the court, aboriginal Canadians have deeper historic claims to a place in the judiciary.

“They (Newfoundland and Labrador residents) have been waiting a long time, but we’ve been waiting a little bit longer,” she said.

Lightening-Earle said in a telephone interview a rare opportunity has been missed, and indigenous lawyers are wondering why they bothered applying to the government’s advisory board for the position.

A report in Policy Options magazine estimated earlier this year that just one per cent of Canada’s 2,160 judges in the provincial superior and lower courts are aboriginal, while 3 per cent are racial minorities — prompting a Dalhousie University law professor to describe the Canadian bench as a “judiciary of whiteness.”

Robert Wright, a black social worker who has served on a Nova Scotia board that recommends judicial appointments, said the announcement is a disappointment given the Trudeau government’s earlier signals it might adjust the system.

“There are an increasing number of Canadians who . . . are not caught up in what I call the historical regional nature of the various Canadian identities we used to focus on,” he said in a telephone interview from Halifax.

Wright argues the principle of diversity that lies beneath appointing people from different regions needed to be shifted to recognize the increasing number of Canadians from diverse ethnic and racial backgrounds.

He said as a black Nova Scotian he would have been content to see a black person from any part of the country elevated to the bench, and he also would have been very pleased if an aboriginal judge was appointed.

Wright and Lightening-Earle say the country is losing out on the opportunity to gain from indigenous perspectives on everything from constitutional issues to sentencing to the factors that lead to crime.

Jeffery Hewitt, a legal scholar at the University of Windsor, said he doesn’t accept arguments that there may be a lack of qualified candidates.

“Tell us who applied. Give us the list. Talk to us about . . . whether there were any indigenous people in there?” said Hewitt, a Cree who has provided legal advice to First Nations.

A spokeswoman for the federal Justice Department said the independent advisory board that recommends candidates to the prime minister’s office “will be reporting on this information one month from (an) appointment.”

Hewitt said he’s hopeful that going forward, the Liberals will make more appointments to the superior courts in the provinces.

In Quebec, the Policy Options study noted three visible minority judges out of more than 500, despite bar society figures showing more than 1,800 of its roughly 25,000 lawyers identify themselves as being from visible minority groups. The province said it doesn’t keep figures.

In Ontario, one of the few provinces where the judicial advisory body keeps figures on the lower court appointments, there were 24 visible minority judges out of 334 judges, even though one quarter of the province’s overall population identifies as a visible minority.

There are no visible minorities on the bench in Newfoundland and Labrador, which by constitutional convention was the likeliest province to be tapped for the next Supreme Court of Canada appointment.

Source: Advocates for minority Supreme Court judge disappointed by Trudeau’s pick | Toronto Star

Why Atlantic Canada risks losing its seat on the Supreme Court bench

David McLaughlin’s concerns on regional representation, where the comparative lack of diversity among Atlantic judges comes up against overall objectives for a more diverse Supreme Court):

The requirement that the Atlantic provinces have a guaranteed Supreme Court seat is a clear matter of convention, custom, practice, and tradition. How do we know? Because it has been the case since Canada existed. It is not an explicit legal obligation. A convention, with higher legal consequence, is not a custom, which may simply be a long-standing practice or tradition. A convention is not sacrosanct. Political actors can change it. That is how societies evolve.

Under the failed 1992 Charlottetown accord, the federal government would have been required to name judges from lists submitted by provinces and territories. This was a contemporary recognition of what might be termed the “regionalization” requirement of Supreme Court representation. It hewed closely to the original precepts of Confederation. The accord also called for formal consultation by provinces and territories with aboriginal peoples in the preparation of such lists.

Mr. Trudeau’s process inserts a more explicit “diversification” requirement for Supreme Court representation. The court should mirror Canadian society more visibly and directly as it pronounces on law that affects people.

This is all to the good. Except when it is not. This new process contemplates a clear tradeoff between historic convention and contemporary correctness. Since this convention is well known and established, there is no question that Mr. Trudeau is being deliberate, if not exactly forthright, about his intentions.

Justice Cromwell has not yet been replaced. Another judge from Atlantic Canada may yet be named. But this is no longer guaranteed. And that should exercise residents and governments in those four provinces.

Source: Why Atlantic Canada risks losing its seat on the Supreme Court bench – The Globe and Mail

And Konrad Yakabuski notes, I think correctly, that diversity is likely not to include much ideological or philosophical diversity (although I would not characterize it in the dark tones he does – really, seeing discrimination “lurking in every crevice of society”):

Canadians are lucky that, in Jody Wilson-Raybould, Mr. Trudeau has the most qualified Justice Minister in recent memory. As an aboriginal and former adviser to the B.C. Treaty Commission overseeing treaty negotiations between First Nations and the Crown, she is sensitive to the balancing act involved in governing and not prone to political pandering. She can be counted on to recommend judges of the highest calibre, regardless of their origins.

Just don’t expect Mr. Trudeau’s definition of diversity on the bench to include ideological or philosophical variety. The process he has put in place pretty much ensures the selection of liberal judges. Three of the advisory body’s seven members are Liberal appointees. Even if you might expect former Progressive Conservative prime minister Kim Campbell to argue for ideological diversity on the court, it’s an argument she’s likely to lose.

To be sure, the Liberal government has an interest in appointing judges that will uphold its laws, including its controversial legislation on assisted dying. But Mr. Trudeau has a greater political interest in naming judges that tick off his diversity boxes.

And with a majority of his advisory body’s members chosen directly by the legal profession – with the Canadian Bar Association, the Canadian Judicial Council, the Federation of Law Societies of Canada and the Canadian Council of Law Deans each getting to pick a member – the short list of potential top court judges Mr. Trudeau receives will reflect a liberal activist bent that sees discrimination lurking in every crevice of society.

 Diversity yes, but don’t expect big changes on Supreme Court 

How a new appointment process ushers in Supreme Court transparency

Two separate commentaries on the new Supreme Court process and the diversity aspects, starting with Emmett Mcfarlane:

Moreover, statements that the committee will canvass across Canada to fill the new appointment has been met with criticism that the government is doing away with the convention of regionally-based appointments. The upcoming vacancy is historically Atlantic Canada’s seat on the Court. There is speculation that one reason the government would look to other parts of Canada for the next appointment is the desire to appoint an Indigenous or visible minority candidate to the bench. Not appointing someone from Atlantic Canada would not conflict with anything in the constitutional text, but it would be contrary to convention. While the courts tend not to enforce conventions, the government invites significant controversy if it chooses to abandon one here.

The regional issue aside, the lack of diversity on the Court is also a serious problem, at least from the perspective of the institution’s legitimacy. Lack of representativeness in a key governing institution like the Court runs contrary to the stated objectives of the Trudeau government (because it’s 2016, after all). Since the Court’s creation in 1875, every justice has been white. The language of the committee’s mandate is no doubt intended to rectify that. Whether it will, and whether the new process will succeed in bringing greater transparency to appointments and to the Court itself, remain to be seen.

Source: How a new appointment process ushers in Supreme Court transparency

Errol Mendes on the same point:

While the advisory panel has the mandate to consult widely (including with the Chief Justice of the Court, provincial representatives, and MPs and senators from all parties) it must go further in filling in what is missing – namely the lack of aboriginal and visible minority representation in the court while also achieving full gender parity on the bench.

Mr. Trudeau emphasized that the court must reflect our diverse society to bring different and valuable perspectives to the decision-making process. That is indeed what should be part of an appointment process based on merit. To achieve that, the advisory committee must perform extensive outreach activities, going into every part of our legal institutions to seek out the most competent and meritorious of such representatives of the missing diversity on the court.

Expectations of transparency and openness have been raised high by this new appointment process, but so has the expectations of a more diverse court. Because it is 2016.

 New advisory panel needs to dig deep for diversity on Canada’s top court 

Ottawa overhauls process for selecting Supreme Court justices

By my count, of the seven members, four women, one indigenous person, no visible minorities. Will be interesting to see how this process works and the results it generates:

Members of the new advisory board nominated by the legal community include: Susan Ursel, a senior partner with a Toronto law firm who has been recognized for her support of the lesbian, gay, bisexual, transgendered and two-spirited (LGBTT) communities in Canada; Jeff Hirsch, president of the Federation of Law Societies of Canada and partner with a Winnpeg law firm; Richard Jamieson Scott, a former chief justice of the Manitoba Court of Appeal and counsel, arbitrator and mediator at a Winnipeg law firm, and Camille Cameron, dean of the Schulich School of Law at Dalhousie University and Chair of the Canadian Council of Law Deans.

The Prime Minister said opening up the process helps reassure Canadians “that all members of the Supreme Court are both fully qualified and fully accountable to those they serve” across the country.

“The appointment of a Supreme Court justice is one of the most important decisions a Prime Minister makes. It is time we made that decision together.”

All candidates must be functionally bilingual, the government says.

The three members of the advisory board appointed by the Trudeau government include: Ms. Campbell, who served as prime minister in 1993 when she led the Progressive Conservative Party, former Northwest Territories premier Stephen Kakfwi and Lili-Anna Peresa, president of Centraide of Greater Montreal. Centraide is the Quebec presence of United Way Canada.

The government will mandate the advisory board to support the goal of a gender-balanced Supreme Court that also reflects Canada’s diverse society. With Justice Cromwell’s departure, the bench is equally split between men and woman and so a new ninth judge will tilt the balance one way or another.

“A diverse bench brings different and valuable perspectives to the decision-making process, whether informed by gender, ethnicity, personal history, or the myriad other things that make us who we are,” Mr. Trudeau wrote.

Source: Ottawa overhauls process for selecting Supreme Court justices – The Globe and Mail

Trudeau faces diversity challenge in Supreme Court judge selection

Interesting comment about the small ‘pipeline’ of potential visible minority and Indigenous judges bequeathed by the previous government (for my analysis of judicial and other diversity, see my free download in iPad/Mac version (iBooks) and Windows (pdf) Version)::

In Prime Minister Justin Trudeau’s first chance to name a judge to the Supreme Court of Canada, the search for diversity is bumping up against the reality of limited choices – raising the odds that a government that chose just three white males in its first 15 judicial appointments will pick one for the country’s most powerful court.

Mr. Trudeau has an opportunity to make a historic mark. If he names a woman for the job that comes open in September, he would give the court the first female majority in its 141-year history. If he names a member of a visible minority or an indigenous judge, that, too, would be a first for the court.

His Liberal government has left little doubt that it would like to find a well-qualified candidate from one of those groups.

“If it’s possible, they’re going to give it to a female, bilingual, visible minority – if they can find that person,” a Liberal party insider said.

But the search is proving to be a challenge. The opening comes with the upcoming retirement of Justice Thomas Cromwell of Nova Scotia and convention dictates that his successor must come from Atlantic Canada. The Prime Minister’s insistence that new appointees to the country’s highest court be functionally bilingual limits his choices further.

And there are no obvious bilingual stars among women on the region’s appeal courts (the most frequent source of Supreme Court judges) and in its law firms, more than a dozen legal observers in Atlantic Canada said in interviews. As for visible minority or indigenous judges, the pipeline was left largely empty by the former Conservative government.

And so Mr. Trudeau’s attention may yet turn to white males. Among the leading candidates in that category are Justice Marc Richard of the New Brunswick Court of Appeal and Chief Justice Michael MacDonald of the Nova Scotia Court of Appeal.

Source: Trudeau faces diversity challenge in Supreme Court judge selection – The Globe and Mail

Time to name an Aboriginal justice to the Supreme Court: Hassan and Siddiqui

 Visible Minority LawyersNader Hassan and Fahad Siddiqui make the argument (the number of visible minority lawyers is higher than their article, based upon NHS data that I used in my book, Multiculturalism in Canada: Evidence and Anecdote):

These criteria narrow the field considerably [member of provincial superior court, bilingual, Maritime], and risk obscuring another important fact: our high court does not look like the rest of Canada. No Aboriginal or visible minority has ever been appointed to the Supreme Court. Regional representation — which convention so assiduously protects — is important, but in an increasingly ethnically and religiously diverse country, it is only one of many indicia of diversity.

Since the Abella Equality in Employment Royal Commission Report in 1984, a consensus has emerged among judges, lawyers and academics that judicial diversity matters. A diverse judiciary results in a broader range of perspectives, which is crucial to judicial decision-making. And greater judicial diversity fosters public confidence in the administration of justice.

Little progress has been made so far. Professor Rosemary Cairns Way of the University of Ottawa reports that Aboriginal and visible minority members account for roughly 23 per cent of the population, and yet from 2009 to 2014, only 1.04 per cent of appointees to the provincial superior courts were Aboriginal, and only 0.5 per cent were members of a visible minority group.

The same appears to be true of the senior reaches of the legal profession. The body that regulates lawyers in Ontario, the Law Society of Upper Canada, does not regularly collect comprehensive demographic data. But a Society report, released in 2010, shows that only 5 per cent of lawyers in Ontario between the ages of 45 and 64 are Aboriginals or visible minorities even though those two groups make up more than a fifth of that segment of the population.

It is sometimes argued that as Canada’s population diversifies, the legal profession will too. Problem solved — some years or decades down the line.

The statistics we have don’t bear out that claim though. Even among younger generations, Aboriginals and visible minorities are under-represented at the bar. And those who have managed to gain a foothold in the profession face unique challenges. The society reports that a majority of Aboriginal and visible minority lawyers believe that having a different cultural background has disadvantaged their careers. In that sense, the legal profession reflects trends in the broader job market. According to a recently released study led by University of Toronto researchers, black job applicants are 25.5 per cent more likely to land a job interview when they scrub their resumé of clues of their race.

The time has come for change. And this change requires leadership from the top. We need out-of-the box thinking, such as Trudeau’s laudable decision to name women to half his cabinet positions — including Canada’s first Aboriginal justice minister. The prime minister will have to take a similarly bold approach to fill the high court vacancy. An Aboriginal candidate should take priority. It’s an absolute shame that Canada’s highest court has never had representation from among our First Nations.

US Supreme Court Takes On Racial Discrimination In Jury Selection

Interesting, and symptomatic of the situation in so many areas:

The U.S. Supreme Court wrestles Monday with a problem that has long plagued the criminal justice system: race discrimination in the selection of jurors.

“Numerous studies demonstrate that prosecutors use peremptory strikes to remove black jurors at significantly higher rates than white jurors.”

Those are not the words of the defense in the case. They come from a group of highly regarded prosecutors, Republican and Democrat, conservative and liberal, who have filed a friend-of-the-court brief siding with Timothy Foster, who was convicted and sentenced to death in the killing of an elderly white woman in Georgia.

It has been nearly 30 years since the Supreme Court sought to toughen the rules against racial discrimination in jury selection. But Foster’s lawyers argue that black jurors were systematically excluded from the jury at his trial in 1987, while judges at all levels looked the other way for nearly three decades thereafter.

Jury selection is done according to a set of rules. Prospective jurors are usually questioned by both prosecution and defense lawyers and then winnowed down in two different ways. First, the judge removes, “for cause,” those jurors deemed incapable of being impartial. Next, each side, prosecution and defense, has a set number of peremptory strikes, meaning that a certain number of prospective jurors can be eliminated without a stated reason, or for no reason at all.

In 1986, the Supreme Court added a third step in a case called Batson v. Kentucky. Under the Batson rules, if the defense could show a racial pattern in prosecution peremptory strikes, the prosecutor would have to justify each one by demonstrating a non-racial reason for eliminating the juror.

Still, prosecutors found ways to get around this new rule, as demonstrated by an infamous training video made in Philadelphia in the late 1980s after the court’s decision in Batson. The video features then Assistant District Attorney Jack McMahon advising trainees that “young black women are very bad, maybe because they’re downtrodden on two respects … they’re women and they’re blacks.”

He goes on to recommend avoiding older black women too, as well as young black men, and all smart, and well educated prospective jurors.

But, McMahon reminded the trainees that they had to come up with a non-racial reason for their strikes: “When you do have a black juror, you question them at length and on this little sheet that you have, mark something down that you can articulate at a later time if something happens,” he says.

Studies have shown that these proffered reasons are often a mere pretext for racial discrimination. A North Carolina study of jury selection in 173 death penalty cases found that black prospective jurors were more than twice as likely to be struck by the prosecution as similarly situated white jurors. A 2003 study of 390 felony jury trials prosecuted in Jefferson Parish, La. found that black prospective jurors were struck at three times the rate of whites. And in Houston County, Ala., prosecutors between 2005 and 2009 used their peremptory strikes to eliminate 80 percent of the blacks qualified for jury service in death penalty cases. The result was that half of these juries were all white, and the remainder had only a single black member, even though the county is 27 percent black.

Source: Supreme Court Takes On Racial Discrimination In Jury Selection : NPR

U.S. Supreme Court affirms religious rights in Abercrombie & Fitch case

Reasonable accommodation example. Will see how the lower court rules in terms of the specifics but at least the general principle has been confirmed:

The U.S. Supreme Court strengthened civil rights protections Monday for employees and job applicants who need special treatment in the workplace because of their religious beliefs.

The justices sided with a Muslim woman who did not get hired after she showed up to a job interview with clothing retailer Abercrombie & Fitch wearing a black headscarf.

The headscarf, or hijab, violated the company’s strict dress code, since changed, for employees who work in its retail stores.

Employers generally have to accommodate job applicants and employees with religious needs if the employer at least has an idea that such accommodation is necessary, Justice Antonin Scalia said in his opinion for the court.

Job applicant Samantha Elauf did not tell her interviewer she was Muslim. But Scalia said that Abercrombie “at least suspected” that Elauf wore a headscarf for religious reasons. “That is enough,” Scalia said in an opinion for seven justices.

U.S. federal civil rights law gives religious practices “favoured treatment” that forbids employers from firing or not hiring people based on their observance of religion, Scalia said. The federal civil rights law known as Title VII requires employers to make accommodations for employees’ religious beliefs in most instances. Elauf’s case turned on how employers are supposed to know when someone has a religious need to be accommodated.

The decision does not, by itself, resolve her case. Instead, it will return to the Tenth Circuit Court of Appeals in Denver, which earlier ruled against her.

“While the Supreme Court reversed the Tenth Circuit decision, it did not determine that [Abercrombie & Fitch] discriminated against Ms. Elauf. We will determine our next steps in the litigation,” company spokeswoman Carlene Benz said in an email.

Some business groups said Monday’s ruling will force employers to make assumptions about applicants’ religious beliefs.

“Shifting this burden to employers sets an unclear and confusing standard making business owners extremely vulnerable to inevitable discrimination lawsuits,” said Karen Harned, a top lawyer at the National Federation of Independent Business. “Whether employers ask an applicant about religious needs or not, there is a good chance they will be sued.”

Jenny Yang, chairwoman of the federal Equal Employment Opportunity Commission, praised the court for “affirming that employers may not make an applicant’s religious practice a factor in employment decisions.” The commission had sued on Elauf’s behalf.

As to the protestations of the National Federation of Independent Business, it does not appear to me too difficult to make the assumption that someone wearing a cross, a kippa, a turban or a hijab is likely doing so for religious reasons.

U.S. Supreme Court affirms religious rights in Abercrombie & Fitch case – World – CBC News.

Quebec infringed on religious freedom by forcing Catholic school to teach secular course: Supreme Court

On the recent Supreme Court ruling:

Loyola told the Supreme Court it wasn’t challenging the constitutionality of any legislation. But it was invoking a regulatory provision that allows private schools to teach their own version of a course where their program is equivalent, the school said in its factum. However, Quebec’s Education Department doesn’t consider Loyola’s substitute course an equivalent one. One reason is that the approach recommended by the ERC course is non-denominational, while Loyola’s version aims to transmit the Catholic faith, the Quebec government argues.

Loyola has said it would teach all the same content at the ERC course Loyola’s former principal Paul Donovan told the Montreal Gazette on Wednesday.

“We just didn’t want to have to suppress or hold back the Catholic nature of the school,” Donovan said.

Private religious schools in Quebec can teach their own faiths, but separately from the ERC course.

It’s the second time the Supreme Court has weighed in on the course taught in Quebec’s schools since the 2008-2009 school year. A Drummondville couple, who are Catholics, had argued that refusing to exempt their sons from the compulsory course violated their freedom of conscience and religion. But in a unanimous decision, the Supreme Court dismissed their appeal in 2012. The couple hadn’t proved that the ERC course interfered with their ability to pass their own faith onto their children, the decision said.

Quebec infringed on religious freedom by forcing Catholic school to teach secular course: Supreme Court.

Graeme Hamilton’s commentary on the fears of religious fundamentalism in Quebec:

Listening to politicians, it can feel as if Quebec is under assault from religious fundamentalists. The opposition Parti Québécois wants an observer to report annually to the National Assembly on “manifestations of religious fundamentalism.” The Liberal government has a working group to combat radicalism. The Coalition Avenir Québec proposes banning preaching that runs counter to Quebec values.

But those same legislators have no quarrel with a secular fundamentalism that has taken root in the province at the expense of religious rights. On Thursday, the Supreme Court of Canada sent a message to Quebec that its state-sanctioned secularism can go too far.

In a ruling affirming the right of Montreal’s Loyola High School, a private Catholic boys school, to teach its own version of a provincially mandated course on ethics and religion, the court offered a timely reminder to politicians.

“The pursuit of secular values means respecting the right to hold and manifest different religious beliefs,” Justice Rosalie Abella wrote for the majority. “A secular state respects religious differences, it does not seek to extinguish them.”

The pursuit of secular values means respecting the right to hold and manifest different religious beliefs

The ruling specifically applies to a small number of private religious schools in Quebec, but it resonates more widely at a time when governments contend with questions involving religious rights. Recently in Quebec, mosques have run up against obstacles over fears of religious extremism, and a Muslim woman was told she could not appear before a Quebec Court wearing her hijab. The federal government has taken a stand against the face-covering niqab, saying women cannot wear the garments during citizenship ceremonies.

Interference with a religious group’s beliefs or practices is justified only if they “conflict with or harm overriding public interests,” Justice Abella wrote.

… In a partially concurring opinion that argued for less restriction on Loyola, Chief Justice Beverley McLachlin and Justice Michael Moldaver wrote that it is enough for Loyola teachers to treat other religious viewpoints with respect; it does not have to treat them as equally legitimate.

“Indeed, presenting fundamentally incompatible religious doctrines as equally legitimate and equally credible could imply that both are equally false,” they wrote. “Surely this cannot be a perspective that a religious school can be compelled to adopt.”

John Zucchi, whose son was a student at Loyola when the ERC program was introduced and who was a plaintiff in the initial court case, said Thursday’s ruling provides crucial guidance. “This is helping the country to come to what I would call a sane form of secularism,” he said. “We don’t need to shut down one voice in the name of diversity and pluralism, but rather diversity and pluralism mean that all perspectives can be heard and be out in the public square.”

Graeme Hamilton: A secular fundamentalism has taken root in Quebec