State Neutrality in Religious Affairs Civil Servants & Religious Dress

By Pelsmakher, Simon | Canada-United States Law Journal, Annual 2017 | Go to article overview

State Neutrality in Religious Affairs Civil Servants & Religious Dress


Pelsmakher, Simon, Canada-United States Law Journal


ABSTRACT: This article examines the question of whether civil servants have the right to wear religious dress. The law in Canada, the United States, and Europe will be examined in order to review different policies regarding the relationship between state neutrality and religious affairs, freedom of religion, and equality. A synthesis of these laws will then be proposed in order to argue that civil servants should have the right to wear religious dress, and by doing so, laws pertaining to neutrality are not violated.

TABLE OF CONTENTS

I. Introduction
II. Canadian Case Study
    A. Sunday Closing Cases
    B. Religion in Public Institutions
    C. Multiculturalism and the Charter
    D. Quebec Case Study
III. U.S. Case Study
IV. European Case Study
   A. Italian Case Study
V. Final Synthesis

I. INTRODUCTION

Over the past few centuries there has been a growing debate in the Western world about the relationship between state and religion. This issue took center stage in the U.S. founding laws and principles and it is a significant issue in Canada and Western Europe. Whereas the law mandates an official "separation of church and state" in the United States, (1) the law in Canada provides no such guarantee. Canadian jurisprudence favors a so-called "state-neutrality" approach as a means of balancing the interests of competing religious groups while remaining neutral. The jurisprudence in Europe is arguably somewhat contradictory. States such as Italy actively promote secularism, yet conversely uphold the importance of Roman Catholicism in their societies.

In recent years, one aspect of the state-religion debate has focused on the rights of civil servants to wear religious dress while conducting their official public duties. The former Parti Quebecois government attempted to address this issue by proposing the Quebec Charter of Values ("Quebec Charter") in 2013, which would have prohibited civil servants from wearing religious dress. (2) Canadian political leaders heavily criticized the Quebec Charter and it did not become law. Nevertheless, the debate over the use of religious dress by civil servants while on the job continues to unfold in Quebec and the rest of Canada within the greater context of accommodation of religious minorities and the relationship between state and religion.

This article will argue that Canadian civil servants should have the right to wear their respective religious dress at work. A comparative approach will be taken to outline the methods used in Canada, the United States, and Europe, with a particular emphasis on Italy, in order to determine how this issue is tackled around the world. First, there will be a discussion on how the law operates in Canada (excluding Quebec). Sections 2(a), 15, and 27 of the Canadian Charter of Rights and Freedoms (3) ("Charter") will be reviewed. There will also be a discussion of the "Sunday closing cases."

Next, this article will discuss how the law operates in Quebec, and will outline the Outremont secularism and religious-accommodation disputes. The cases of Syndicat Northcrest v. Amselem, (4) and Rosenberg v. Outremont, (5) will be reviewed, as will the Bouchard-Taylor Report. (6) The article will subsequently survey the relevant law in the United States. The Establishment Clause of the First Amendment of the U.S. Constitution (7) will be reviewed in addition to applicable American case law. These cases include Van Orden v. Perry, (8) Everson v. Board of Education, (9) McCreaiy County v. ACLU of Kentucky, (10) and Lemon v. Kurtzman. (11) Finally, this article will briefly review the law in Europe, such as in the European Court of Human Right's decision in Lautsi and Others v. Italy. (12) Following the discussion, a proposal will be introduced which synthesizes the relevant laws surveyed in order to demonstrate why civil servants should have the right to wear religious dress while at work.

II. CANADIAN CASE STUDY

While Canadian law does not make any specific mention to "separation of church and state," as is the case in the United States under the U. …

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