The Spirit of Laws

The ideals behind the two northern neighbours in North America are clearly seen in two documents framed 190 years apart: the American Bill of Rights, ratified in 1791, and the Canadian Charter of Rights and Freedoms, adopted in 1981.

The Bill of Rights as a whole makes up the first ten amendments to the US Constitution signed four years earlier. The Charter is the latest and probably the most significant of 30 amendments to the Canadian Constitution Act 1867.

Both documents start with a cluster of four rights (five, in the case of the US Bill, depending on whether the right "to petition..." is read as separate from the right "... to assemble". In both documents, Religion heads the list of rights:

"1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

and

"2. Everyone has the following fundamental freedoms: (a) freedom of conscience and of religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association."

Despite an overlap in content, there is a divergence in emphasis. "Religion" in the American Bill, and more specifically its "establishment" is expressly placed outside the scope of the law, together with certain other topics. Message to legislators and governments: Don't go there.

In the Canadian Charter, "freedom of ... religion," together with other listed freedoms, is simply affirmed as an existing and continuing right. The present, declarative "has" is used, rather than the future, emphatic "shall."

This reflects the difference between the American revolutionary tradition and the Canadian evolutionary one. To those living two centuries later, it's virtually impossible to imagine how dramatic a step American Independence was: in creating a country and in setting up a distinct society.

Some Christians like to believe that the Separation of Church and State goes back to Jesus' injunction to "Render unto Caesar... and to God..." That is reading a far larger idea into words that were limited and specific in their impact.

Separation of Church and State was practically unheard of before the American Revolution. The Reformation in Europe created a checkerboard map of principalities, each with its own religion. Animosity among them was intense, particularly for radical groups that had no sponsoring prince or kingdom.

In the New World things were not much better. New England was founded largely by Puritans: refugees from religious persecution in England, who relentlessly persecuted dissenters among their own numbers. In the Southern colonies, religious zeal was somewhat less intense, but the churches there still jealously guarded their established privileges. Only Roger Williams' Rhode Island and William Penn's Pennsylvania can be said to have been free of religious persecution.

New France had begun with a significant Huguenot influence, but this was suppressed with persecution of Protestants in France. At its zenith New France was a devoutly Catholic colony, though less oppressive than most areas of Europe under Catholicism.

This was due partly to a lack of official dissent which often incites persecution. It was also due to geography. With the Atlantic between the France and Quebec, and the Saint Lawrence River frozen each winter, religious and political currents in Old France were muted in the New.

With Britain's takeover of New France after 1759, a significant development took place. After initial half-hearted attempts at anglicization, the new colonial governors decided to affirm the Catholicism and Church rights as a cornerstone of the French culture of their new colony.

This was legislated in the 1774 Quebec Act which became one of the grievances cited in the Declaration of Independence. The Quebec Act succeeded in its intended purpose of keeping French Canadians from joining the American Revolution. But what concerns us here is the religious step forward the 1774 Act represented.

It was the first major detente between Catholics and Protestants in the world, granting Roman Catholics rights in Quebec that they enjoyed in no other part of the British Empire. But this was still state establishment of religion, even if the state now tolerated two official religions rather than one.

Taking official religion off the constitutional table entirely was a radical step that originated in the United States. It was less an idealistic measure than an essential one. So great was the range of religious groups in the Thirteen Colonies and so intense their historic zeal, that to have favored any one or group of them at the expense of others, would have provoked an earlier civil war.

To tolerate all religions and to establish none in the new republic cut the Gordian Knot of religious schism that plagued Europe. It also sowed the seeds for the unrestricted competition among religious groups, both traditional and new sects. This has given the US its high level of religiosity, even though it has no official religion.

Canada has followed a different route. The establishment of multiple religions that continues in tax-supported religious schools has become a badge of Canadian society. As religious rivalry has declined in the mainstream, the pluralism that has been a divisor in Europe is a unifier where citizens can explore each others' faiths and traditions.

All this comes from a different approach to, and view of the law where religion is concerned.