Religion, Courts, and the Public Square

Notes for Hon. David Kilgour

Talk to the Christian Legal Fellowship (CLF) Law Student’s Conference 
Telus Centre, University of Alberta, Edmonton
January 29^th, 2005.

Thank you very much for this award from the International Religious Liberty Association and Liberty Magazine. It is a great honour for many reasons, but I’d like to mention just one…

In fact, I come from a family of lawyers on both sides; my mother's grandfather, Daniel MacDonald, left PEI and practised in Portage La Prairie, Manitoba, until he became Chief Justice of the province. My father's father, Fred Kilgour, left the Guelph area and practised in Brandon until he was appointed to the Queen's Bench in Winnipeg. My wife Laura graduated from the University of Alberta Law School and joined Ogilvie and Co. in Edmonton where she served as a partner earlier in her career.

As far as I know, all the lawyers in our family were active Christians. Your award, then, perhaps honours all of them in a sense too.

The organizers of this event, at which there are law students from Fredericton to Victoria, asked me to speak about what it's like to be a believer in public life today. Like many of my parliamentary colleagues, from all political parties and numerous faiths, I could candidly reply in a single word: “challenging." However, let me attempt to give a better answer.

 

The Universal Almanac on World Religions estimated about five years ago that there were then about 1.5 billion Christians across the world. Evidently, one of the Christian denominations is now the fastest growing organizations, secular or religious on earth.

In virtually every country I've visited, especially since the cold war ended in 1989, I've been struck by the sincerity, good works and confidence of local Christians and other faith communities.

The collapse of ideological competitors and the “Crisis of Soul” to use the term of Aleksander Yakovlev (the former advisor to Mikhail Gorbachev and onetime Russian ambassador to Canada) has opened a lot of doors and minds to spiritual matters in recent decades.

One regime that continues to persecute practitioners of specified faiths severely is China's.

I recall some years ago when several Canadian visitors were permitted to speak of our faith at a dinner held in the Beijing room of the National People's Congress in Beijing.

One member of our group attempted to tell our hosts that his own business practices had changed much for the better after he became a believer. One official—a lawyer, as I recall—kept interrupting him to argue that what China needed to reduce corruption and commercial abuses more statutes.  Our hosts did permit us to pray for China and its people at the end of the dinner. 

A few days ago, when my office reminded me of this event while in Vietnam, I was attempting to finish How Now Shall We Live? by Charles Colson, JD, and Nancy Pearcey. While I do not agree with everything in it, it is a book that I’d enthusiastically recommend to all of you.

One section looks at some important legal issues in our neighbour. You can decide to what extent the analysis applies to Canada.

Respectful Dissent

During 1963, in Selma, Alabama, following the US Supreme Court's decision to integrate schools, Martin Luther King Jr. disobeyed a restraining order issued by a federal judge barring him from demonstrating with others and was arrested. His subsequent letter from jail declared that “…a just law is a manmade code that squares with the moral law or the law of God.”

Similarly, in the campaign a century earlier to end slavery, authors Colson and Pearcey comment; “(Lincoln) wrote passionately about ‘the duty of nations as well as of people to own their dependency upon the overruling power of God’s.’ Only a deep conviction in our obligation to submit to a higher authority could have steeled this humble country lawyer to oppose slavery when it was a legally established institution.”

Law above Laws

The concept of transcendent law goes back centuries to the ancient Greeks and Romans. The law (Torah), for example, was considered as divine revelation in Jewish culture. (Muslims, Hindus, Buddhists and many other faiths appear to share a similar perspective).

Following 380 AD, the law in the remaining years of the Roman Empire developed largely under Christian principles. Aquinas and Augustine, among others, argued that human law must reflect the order created by God since it is the “law written on the heart." This assumption, note Colson and Pearcey, was expressed in the Magna Carta of 1215 and was also the foundation of the English common law.

During the period in which the notion of the divine right of kings was prevalent, a Scottish clergyman, Samuel Rutherford, wrote a book in the 1600’s, which asserted that the law stands above the king and he is subject to it like all other citizens. The founders of America were influenced by Rutherford through the works of John Locke and others and ensured, they thought, that laws rather than individual persons would rule Americans.

The American government was, concluded Colson and Pearcey, also to be limited by the constitutional scope of its authority over the population. In Catholic thought, this concept developed through the notion of “subsidiarity,” which held that the state and its institutions existed to help subordinate ones, like the family, with the implication that if it went beyond assisting them it was acting illegitimately. “Sphere sovereignty” in Protestant doctrine meant that all spheres in society; the state itself, schools, families etc, stood directly under God's authority and meant among other things that the power of each was limited by the authority of the others.

This balanced model, termed “ordered liberty” by the American Founders, was intended to avoid falling into despotism. The concept of a separation of powers among the legislative, judicial and executive branches and a federal system of government were also adopted in the US constitution to a similar end.

“Judicial Imperialism”

The long held conviction that human law must reflect a higher law was challenged seriously only at the end of the 19th century by the pragmatist school, led by a group, which included William James and Oliver Wendell Holmes. According to the authors, James defined truth as “the cash value of an idea.” Holmes advised an audience of law students in 1897 to jettison notions of ethics and to look at law as the source of state coercion. Summarily put by Holmes, say Colson and Pearcey, law is the “majority vote of that nation that can lick all others.” In short, law is nothing more than sheer force.

The chapter then speaks at some length of what the authors think the pragmatists have since done to the development of the law in the US, which I will not get into. Let me, however, end with their comments on the decision of the 1997 US Supreme Court in Boerne v Flores:

“(Boerne was) the first challenge to the Religious Freedom Restoration Act (RFRA) of 1993. The purpose of RFRA was to re - establish a strict standard for protecting free religious exercise, which had been struck down by the Court three years earlier. Significantly, RFRA was passed unanimously in the House, had only three dissenting votes in the Senate, and was enthusiastically signed by President Clinton. If ever a piece of legislation reflected the will of the people, it was the RFRA. Nevertheless, in Boerne the Supreme Court declared RFRA unconstitutional on the grounds that the express authority to enforce the basic civil rights guaranteed by the Fourteenth Amendment is not “substantive” but merely “remedial.” Not only was the free exercise clause emasculated, but also a vote reflecting the nearly unanimous will of the American people was overruled.”

The cumulative result of such decisions, contend Colson and Pearcey, is that the American high courts, especially the Supreme Court, are unrestrained by higher law and disdainful of majority will. They are also the dominant force in American politics.

What of our country? A paper I prepared, entitled, “Whither Judicial Restraint?” can be accessed on my website (www.david-kilgour.com) and I’d genuinely welcome any of your comments on it.

In mentioning these issues, my purpose has been to stress that decisions in the courts, parliaments and governments on both sides of the border are anything but “values - free.” The key question for many of us is what values are to be applied and I think most Canadians would prefer that the often common precepts of our faith communities were much more evident in all corners of our public square.

Believers in Canada Today

Across Canada today, it would appear that more than eight out of ten of us believe in God. Several years ago, Ron Graham concluded in his book, God's Dominion, that “for all the talk of Canada as a secular and materialistic country, there seems to be more and more attention to spiritual issues.”

Still, how many Canadians know, for example, that there are quotations from the Bible carved on three sides of the Peace Tower on Parliament Hill? If we were rebuilding it today, I trust that important thoughts from many other faiths would also be present.

Believers of disparate faith traditions have built many of the institutions across this country; from universities to soup kitchens. Their generous donations to the victims of the Tsunami disasters are only the latest example of the good citizenship and caring values of all our religious communities.

Thank you and God bless the work of all of you.