Ideas - Secularism on trial

Episode Date: March 19, 2026

A case before the Supreme Court of Canada is challenging Quebec’s law on secularism. Benjamin Berger is a prominent voice in the study of constitutional and criminal law in Canada. In this podcast, he examines the dangers of what secularism hides — and how secularism obscures the impact of religion on our legal and political systems.Benjamin Berger is professor at Osgoode Hall Law School of York University. He delivered Memorial University’s 2026 Henrietta Harvey Distinguished Lecture.

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This is a CBC podcast. Welcome to Ideas. I'm Nala Ayyad. There is a pivotal case before the Supreme Court of Canada, challenging Quebec's law on secularism. Perhaps it's also worth pausing to ask who is served by an ongoing focus on the meaning and demands of secularism. Too often, I fear, it's those who don't wish to focus on. and take responsibility for these more difficult questions of fairness and justice.

The perils of the concept of secularism is at the heart of Memorial University's 26 Henrietta Harvey Distinguished Lecture. It was delivered by Benjamin Berger, a professor at Osgood Hall Law School of York University, and a prominent voice in the study of constitutional and criminal law in Canada. In it, he asks, what exactly is secularism? And what impact it has had on our history, politics, democratic values, and the relationship between religion and the state? We find ourselves at a moment of a notable lack of complexity. That's not at all to say, of course, that our collective lives lack of complexity.

nothing could be further from the truth. The challenges we face, the realities we live, our tools, our technologies, our relationships, they've really never been more complicated. Rather, it's the character of our public and political discussions that tend to feel bereft of nuance, tend to feel stripped of detail, of subtlety. And by the measure of so much of our public conversations,

conversation. Political actors are all good or all bad. Events are very clear in their meaning and valence, and those with whom we disagree are just all wrong. Lines are hard, they're clear, they're drawn quickly. And indeed, given the tremendous complexity of our worlds and problems, the amount of certainty that surrounds us is really all the more jarring. And too often of late, I'm sad and sorry to observe. We academics have been agents of that kind of certain split view of things. And there's something tragic about that. It's an abdication of the task with which universities and scholars have been entrusted

to really slow things down, to be agents of complexity, not in the name of moral or ethical equivocation, to the contrary, to serve the ends of greater clarity and deeper understanding that can inform answers to that central ethical question, what should we do? And it's for that reason that I'm just so grateful to have been invited to deliver the Henrietta Harvey Lecture at Memorial University this year. The Harvey family's dedication to the advancement of education and Mrs. Harvey's generous gift to enrich university activities at Memorial, created this opportunity for us to slow down a little together, to think more carefully about issues that matter to us, aiming really to better see the natural complexity of our condition.

And I hope to honor that today. As we sit here today together, the Supreme Court of Canada is preparing to hear argument in a case called English Montreal School Board and Attorney General of Quebec. And this much-anticipated case will determine the constitutionality of a piece of legislation passed by the Quebec National Assembly in the summer of 2019, the so-called act respecting the laicity of the state, Loire on laicite de laetat. Laicite or laicity in the English translation is, as I'll explain later, a brand of secularism. and as many of you will know, this legislation declares the Quebec nation's, quote, particular attachment to state laicity.

It asserts a need for the, quote, paramountcy of state laicity, secularism, to be enshrined in Quebec's legal order, end quote. And to achieve this aim, the law prohibits certain public officials and employees, including teachers, from wearing religious symbols. And it requires that public services, including transit and education, be provided with one's face uncovered. And that latter rule is widely understood to be targeted at the wearing of the kneecap. And the National Assembly did something else. As is becoming alarmingly common in Canada in recent years, Quebec's legislature invoked Section 33 of our Constitution, the so-called notwithstanding clause to insulate this law from the rights and freedoms enshrined in the Canadian Charter. It's notable also that since this law that I'll be discussing today,

the National Assembly has reinforced its approach to secularism with legislation to expand the ban on religious symbols in schools, to limit religious accommodation, and most recently a bill to limit collective religious practices in public. like prayer. Now, the case before the Supreme Court will focus on whether the use of the notwithstanding clause in the act respecting the laicity of the state is permissible and effective. That's the focus of the case, though the court just recently, a couple of weeks ago, signaled a desire also to hear arguments on whether the law offends freedom of religion and equality under the charter. Most agree, it surely does. The Quebec. National Assembly, in fact, by invoking the notwithstanding clause, itself seemed to think that it did.

The law limits religious freedom, and it imposes differential treatment on the basis of religion and likely gender that is incompatible with our commitment to equality. Now, there's much of legal and constitutional interest in this case, but my purpose in raising it today is not to discuss the arguments that will be made before the court or the merits of those arguments, nor is it to discuss the bill in detail. Instead, I want tonight to take the occasion to put pressure on the certainty that surrounds the term at the legal and political center of the case, secularism. How ought we to understand the meaning, and more to the point perhaps, the function of this term that seems to flowed everywhere in our description of our legal and political lives. The National Assembly and defenders and critics of

the bill alike invoke the term secularism with a great deal of certainty. It means and demands precisely this. No, that's not at all what it means or requires. And as you're listening, I suspect you're starting to reflect on your own idea of what secularism means and what it implies for how we organize society, our law, our politics. And if you aren't yet reflecting in that way, I invite you to do so because we will be thinking together about that very soon. So my purpose is evening is to explore the use of this idea,

the secular, in our law and politics. And to that end, one of my questions tonight is this. What's being reached for? What are people trying to capture when some version of secularism is invoked as a legal ideal or as a regulative political principle as settling some question of what we ought to do. I will in a moment spend a little bit of time addressing that question, focusing in particular on the great indeterminacy of the term that emerges.

But having done that, my ultimate focus is on a different kind of question. Given that indeterminacy, what do we conceal when we make this appeal to secularism? What does the appeal to legal secularism hide? And my answer will be that the term secularism is fundamentally obfuscating and distracting. It deflects our attention from the complexities of the ways that our modern worlds are made through the interaction of law, religion, and politics. And it distracts us from the problems that most demand, our attention. And in the end, I'll suggest that when discussing our legal and political problems,

we would do better setting the term secularism down. So first, what is being reached for when the law invokes the secular? What does secularism mean and demand? And perhaps the place to begin is with the legal meaning of the term secular. And it's first worth observing that the term does not have constitutional meaning in Canada. Religion appears in a variety of ways in our constitutional documents with a right to freedom of religion and equality of religion in the Charter, with a reference to God in the preamble of the Constitution Act 1982, and famously a constitutional right to state provided minority religious education, which continues in force in Ontario. And of course, Newfoundland has its own story about this with the guarantee of denominational schooling having been removed in

1998 by amendment to term 17 of the terms of union. But there's no express reference to secularism in the Constitution. That's not to deny that certain principles often associated with the concept of the secular have constitutional importance. They definitely do. Think here of principles of freedom of religion, religious neutrality of the state, and equal treatment of religion and of non-religion. But these really are the guiding concepts in the case law when the court thinks through the place of religion in Canadian society, neutrality, equality, toleration, not secularism. And when the Supreme Court of Canada has, from time to time, spoken of secularism, their use of this term is telling in the vast range of meanings it holds

even for the court. Consider two cases that involve the term secularism prominently, and please listen to the metaphor used to explain what secularism would entail or demand. One case is Chamberlain and Surrey School Board. And in this case, the issue centered on legislation, that said that schools must be run, quote, in a secular manner. The question before the court was whether this requirement for secularity excluded religiously informed views about whether it was appropriate to use books depicting same-sex-parented families in the kindergarten grade one classroom. And the court concluded that secularism did not exclude religious views,

and it explained in the following way, and I quote, religion is an integral aspect of people's lives and cannot be left at the boardroom door. What secularism does rule out, however, is any attempt to use the religious views of one part of the community to exclude from consideration the values of other members of the community. So here, secularism means religion is present and is welcome, but can't be used to exclude other views and values.

Religion can't dominate. Consider now a case called the Queen Against NS, which was about whether a witness testifying in court should be permitted to wear a NICAB, a face covering worn for religious reasons rooted in the Muslim faith. Chief Justice McLaughlin writing for the majority at one point rejects the view that a witness will always be presented.

prohibited from wearing a kneecap. And as she explains why, she explains that, quote, a secular response that requires witnesses to park the religion at the courtroom door is inconsistent with the jurisprudence and Canadian tradition and limits freedom of religion where no limit can be justified, end quote. Note here, secular codes for a prohibition on religion, no religion. What's happening at these secular doors, right? In the first, religion can't dominate, but secularism requires admitting religion

through this boardroom door. And in the second, secularism would bar religion at the courtroom door. And looking at other instances in the court's use of the term, like the more recent schooling cases, we find the same range and inconsistency in its use. For the court, secularism sometimes means pluralism, sometimes equal treatment, sometimes no religion, sometimes anti-religion. And this prepares us for a key observation about the term secular as it's used more broadly, in the legal, but also in the political and public realms.

It's overdetermined. It has many possible meanings and imagined implications. you'll find this in your day-to-day conversations. Perhaps you'll find that in your own use of the term. Secularism can mean something close to pluralism that includes religion. We sometimes associated with the political and legal non-domination of religion, perhaps with multiculturalism, perhaps with toleration. But secularism can also carry a sense of anti-religious, no religion, or even something close to atheism.

Though secularism comes up all the time in our discussions of religion and modern society, we're just never wholly sure what's being said when the term is used. And crucially, no one's quite wrong. And by that I mean that a study of the history and the scholarship around the concept of the secular shows that the term does indeed carry all of these meanings. within it. Though my focus this afternoon is not a history of the concept, I'll just note that this range of meanings is supported by the history of the term itself. Some of the earliest uses of secular referred to offices in the church, like the secular bishop or secular clergy that were, quote,

of the world, meaning not monastics or part of a particular order. Secularism here was clearly religious, but of the world, broad, encompassing, general. And even the critical scholarship on religion shows just a profound breadth of claims about what secularism entails. What does it mean to describe the modern condition as secular? Well, one scholar famously distinguished between two meanings of the term. In one, secularism is about an overall decline in religion. It's about less religion, and surely sometimes that's what we mean. And for a second meaning, describing a modern nation as secular says really nothing in particular about less religion, just that religion

has retreated from public spaces into the private. And that too captures something often meant when the term secularism is used. And the Canadian philosopher Charles Taylor added a third meaning of a secular age, it best describes the shift, quote, from a society in which it was virtually impossible not to believe in God, to one in which faith, even for the staunchest believer, is one human possibility among others. Here, secularism describes a world in which religion is but one choice for a good human life. But let me bring us back closer to our focus. Remember our question right now. What's being reached for when we see a legal or political invocation of the secular? And let's think about the Quebec law coming to the Supreme Court of Canada.

Recall that the Quebec National Assembly used the word laicite or laicity to describe the nature of the Quebec nation and to justify its constraint on religion. What is laicite? It's best understood as a particular brand of secularism, one that traces to the French Third Republic and the so-called anti-clerical movement that advanced a strict view that religion ought to have no place in public life. And on this particular view, the public identity of citizens should be as children of the republic, not defined by their religious identity. And this produced the so-called,

layic model of secularism that we have seen at work in different countries at different moments in history, a model that sees secularism as about the evacuation of religion from the public sphere. That's the model of secularism that Quebec is channeling with this legislation. And this laic model stands in notable contrast with what you might consider a more multicultural or a more pluralistic conception of the secular, version of the secular, version of the world. that focus on welcoming many religious identities into that public sphere, but insisting on neutrality and equal treatment of religions and non-religion by the state. Again, both are secularisms.

Both are ways of imagining the problem of religious diversity and how to navigate it in a modern state. One of them says, let a thousand flowers bloom, just be sure not to favor or endorse any. and the other says you can have your religion privately, but then it removes all those flowers from the public garden. The Quebec National Assembly is not wrong about what secularism might demand, but they are making a choice among many options. Okay. Is this breadth, this range of meanings, a little bit dizzying, right?

Well, good. But met with that sort of range of definitions, and conceptions, you might be wondering, is there no core or common meaning of the secular when it's invoked legally or politically? And I think there is, but that it's just much thinner than we normally assume. Secularism seeks to capture the idea that there is distance between state authority and religious authority. Make no mistake, that's important. That's a precious principle to a modern constitutional democracy. But the means by which this can be done is just vast.

And as an historical and a contemporary matter, societies have pursued this ideal in many, many different ways. I've written that secularism is perhaps best viewed as a repertoire of available moves to establish that space between religion and state authority. But otherwise put, when secular or the secular is invoked in law and politics or in everyday life, it just settles little. It reaches for a general idea,

but it leaves a tremendous amount of detail, the critical details, I argue, unsettled. Now, one response to this might be that the term is just not that helpful and perhaps even confusing. But I'm suggesting something more. The view I want to share this evening is that the use of the term, in the presence of that indeterminacy is more than just unhelpful. It's harmful. It conceals things we should know and we should care about. So it's time to ask our second question, what does secularism hide?

Let me offer three things that secularism hides. When secularism is invoked as a governing ideal or norm, as a principle that purports to tell us how we ought to act in respect of religion, it's offered as a way of promising a state that is uninvolved with religion. There's a sense in which that's true, as I referred to just a moment ago, there is this thin but valuable idea of distance between state authority and religious authority or belief. But the question of proximity between religion and the modern secular state is much, much more complicated than that. It's closer to the truth to say that although secularism does not permit the exercise of government

authority for religious ends or for religious reasons, it actually involves a great intimacy between government and religion. And this is something that our easy use of secularism hides. states and governments that are actively, energetically pursuing secularism, and particularly versions of secularism like laicite, are drawn close to religion. They're deeply involved in religion. They are, in a sense, consumed with religion. Consider our Quebec case and its law concerning the laicity of the state. A central piece of this legislation is the prohibition on the wearing of religious symbols

in the exercise of certain public functions. What is a religious symbol? Well, the legislation defines it as any object that is, quote, worn in connection with a religious conviction or belief, or, quote, reasonably considered as referring to a religious affiliation. Now, consider the work that needs to be done

on the part of this secular government to enforce that law. It must look at a given object, clothing, jewelry, an accessory, headwear, for example, and make a determination of how it relates to religious belief or whether it tracks religious affiliation. And to do this, the government must know quite a lot about religion,

may have to acquire into the architecture of an individual's religious belief and identity, must talk a lot about religion, and in some senses become expert in religious symbolism. Is this hat a part of culture or religion? Is its wearing motivated by religious belief? Even if not, how will people view its relation to religion? This is not a relationship of distance and reserve in the end.

It's a relationship of great intimacy between the state and religion with a promise of secularity yielding a government highly involved in the monitoring, interpretation, and governance of religion. And this is not a bug, a paradox, or secularism

done wrong. This is just how secularism works. In fact, it's a more general feature of law when you think about it. Whenever law adopts a concept that seeks to regulate or distinguish, it comes closer to the thing it's trying to regulate. So to maintain a distinction between the private and the public, for example,

you have to be watching both sides really carefully. The same is true of secular. So secularism is best understood as a type of relationship with religion, a relationship of a particular sort, but a close one, an intimate one, in fact. And this is an inconvenient feature of secularism for some of its most vocal advocates. But it seems that government will always be involved in religion in some way. The mutual involvement of law, politics, and religion appears inexorable in this sense.

And this is an important insight about the modern state. But secularism hides it. And this takes us to a second thing. that secularism hides the ongoing role of religion in our legal and political lives. Many places in the world have turned to the idea of secularism to provide the answer to some of the most fraught challenges of modern political life in a religiously pluralistic society. But what are its dangers? This is Ideas on CBC Radio 1. I'm Nala Ayad.

Hey, it's Anna Sale, host of Death, Sex and Money, the show from Slate about the things we think about a lot and need to talk about more. Many of us have something going on behind closed doors. Like a listener, we called Elizabeth, who told us she's a hoarder. I see mess beyond probably what most people think of when they think of mess. We'll work through it all together on Death Sex and Money. Listen wherever you get podcasts. Law Professor Benjamin Berger delivered Memorial University's 2026 Henrietta Harvey Distinguished Lecture.

He examines how secularism obscures the impact of religion on our legal and political systems. So one way you might hear my reference to the ongoing role of religion in our legal and political lives is a kind of descriptive claim about demographics or sociology. And that claim looks like this, because there are still so many people for whom religion forms a key part of their identity, worldview, and moral landscape, religion will necessarily inform our collective lives

and our legal and political judgments and decisions. The core thought here is that if religion remains a critical part of people's identities, it will still be a force in public life. And despite the many changes in the religious demography of Canada, religion certainly still does play a role for many. So given this demographic fact, we ought to expect and acknowledge an ongoing role in some form

of religion in our public lives. And indeed, it's an ideal of democracy that this should in some way be so. We hope that the deep views, beliefs, and interests of communities and individuals will be brought to politics. Of course, much ink has been spilled by political philosophers about how this can justly take place?

What obligations does a democratic political culture put on us to think about the interests of others? Or to translate our particular views and interests into terms with which others could agree? These are tricky questions. But I will say that it just seems undeniably true that claims of secularism to the side, religion is still very much present in our collective political lives. And so I'm not denying either the truth or value of that observation, that there is still just an awful lot of religion in our lives, so religion will still play some kind of role in law and politics.

But I'm aiming to make a different kind of point. I'm saying more than that religion finds its way via the views of the populace into politics. I'm suggesting that religion has always been and is still actively used by the political. And by the political, I mean by government and by political leaders as they go about the business of defining the nature and interests of the state. Even in a modern democratic constitutional culture, religion is a key resource for the political, worked upon, used to shape our legal and public lives. and this is something that the description of our condition of as secular just hides from view. There's a deep history that one could turn to in order to fully explore that idea. And now a fairly mainstream view of the history of the Western state-based legal order with which we're now familiar

is that it developed since the 12th century out of religious forms of law, canon law, centrally. And scholars point to the way in which many of our core ideas about relevant, about modern law, about liberalism, have been absorbed and traded upon from particular forms of Protestant thought. But to make my point today, let me instead turn back to our touchstone case, the law on secularism in Quebec. And let me tell two different alternative stories about that law. They begin in the same way, but they arrive at very different places. So story one. This is a story of discontinuity, of radical change in religion's role in Quebec, public life in Quebec, law, and politics.

So the story goes like this. At the foundation of Canada, Quebec was a deeply Catholic place within an Anglophone Protestant Sea, and our early constitutional documents, including the Treaty of Paris in 1763 and the Quebec Act of 1774, acknowledged the practical realities of British rule over a substantial French Catholic population through specific rights and protections that were extended to Roman Catholics and the Roman Catholic Church in Canada.

With Confederation, we then see that reflected in the denominational schooling rights in the British North America Act. And then the story says, flash forward to contemporary times. On this story, Quebec is now secular, a very laic society with Quebecers highly skeptical of religious authority and widely holding views on social matters that are very much in tension with traditional Catholic teaching. This radical transformation in the religious life of the province was a product of the quiet revolution of the 1960s in which Quebec broke hard with the authority of the Catholic Church. and transformed many political and cultural practices accordingly.

This is a story about a highly religious society becoming non-religious. Again, it's a story of discontinuity in the role of religion. Once deeply Catholic, Quebec is now committedly secular. Religion's role in this story has fundamentally changed. And read as a part of this story, the law on the laicity of the state is just a next step in that internalization and working through of that transformation. Now, story two. This is a story of continuity in the role of religion in Quebec.

In the early life of Canada, Quebec's particular relationship to religion was a key tool, a resource in establishing its distinctive legal and political character and identity in relationship with the rest of Canada. Quebec was dominantly Catholic, the rest of Canada was not. In 2026, Quebec's relationship to religion is still a key tool, a key resource in establishing its distinctive legal and political character and identity in relationship to the rest of Canada. Whereas the rest of Canada is religiously multicultural and takes even-handed pluralism to be the right public, posture toward religion. Quebec is laic and is committed to religion not being involved in public life.

The rest of Canada is religiously multicultural. Quebec is secular. Note though that religion is still the lever being pulled in both stories, the key material in making claims for political and legal distinctiveness. This is a story of continuity in religion's role in politics. Now as then, religion is the raw material used for marking, for naming, for symbolizing the legal and political distinctiveness, even the sovereignty of Quebec. Plus a change, right, we might say. Now notice the way that secularism interferes with seeing this.

It obscures that second story, the story about how religion remains a powerful resource in questions of state authority, law, politics, and sovereignty. This story rings true and we consider the way that religion has played a central role in claims of political authority and sovereignty over centuries. Looking around the world today, we see that the forms this can take are very, very different from religiously established states all the way to states committed to very anti-religious forms of secularism. But the salience of religion is common among them. The question, what do we do with religion, is always pressing for both law and politics. And the reason for this ongoing salience brings us back to questions of identity and belief, I think. Identity, belief, ritual, they are central to politics, they're central to law, they're central to religion. And this means that they're going to be involved in and used by one another.

But secularism hides this. And this brings me to my final point about what secularism hides. And perhaps it's my essential concern that secularism hides the real questions we should be asking and answering. Bring to mind again that dizzying breadth of meanings and the radically divergent set of demands that the term secularism can transport. As we're busily debating the character of secularism, what you might think, of it and how it differs from what I mean to capture and the implications that flow from one or another conception of it. As we're busily discussing secularism, what aren't we talking about? What is the concern or interest that we hope secularism might lead us to better realize? Is it equality? Is it

inclusion? Is it political fairness, non-domination, cultural distinctiveness, political sovereignty? Whatever else it's doing, invocation of the term secular takes us at least one level of remove away from those more focused, concrete concerns. We end up speaking abstractly about what secularism is, what it demands, instead of whether our government is treating people equally and fairly. Let me give one example from among the current issues in law and religion in Canada, the permissible place of indigenous religion and spirituality and public institutions. Is it permissible, for example, to bring indigenous ritual and prayer into public schools?

Well, this is a terribly interesting question. And to me, it seems plainly wrong to seek to answer that question using a concept like state neutrality drawn from the abstract demands of secularism. No, that question should be answered in light of the historical treatment of indigenous religion and spirituality by the Canadian state through a process of colonialism. It should be answered with an appreciation for the sovereignty of indigenous nations and in view of the need for political reconciliation. And it should be answered in terms of principles of substantive, not formal equality. Or let's return to the Quebec case that we, we've had on our minds tonight. If the question is whether that complex dynamic between inclusion

and societal identity is being managed correctly in a given society, if that is the ultimate concern, what is gained? And more to the point, what do we lose in the currency of transparency, clarity and the health of our democratic society, by translating that into the register of secularism. But the point is not just about values and concepts. It's also about material questions of justice. As we debate the meaning and implications of secularism and laicite, concerned with whether a symbol is religious or not,

whether it's conspicuous or not, and whether this matters, we must also be aware that this debate will take place within a Canadian society in which wealth inequality, gender, religious and racial discrimination, crises of addiction, mental health, labor, migration, environmental degradation are all the material day-to-day problems that we collectively face. Religion is a part of each of those stories too, but at a bit of those stories. appeal to the secular does little to help us think them through. To the contrary, it occludes them. So secularism also hides the most urgent questions we're facing together and our responsibility for answering them. And with that, perhaps it's also worth pausing to ask who is served by an

ongoing focus on the meaning and demands of secularism. Too often, I fear, it's a lot of those who don't wish to focus on and take responsibility for these more difficult questions of fairness and justice. And maybe this takes us back to the way that religion remains an important resource for politics. Maybe it's also a tool of distraction. And perhaps this is where I'll leave things for this evening. As I've tried to explain today, appeals to the concept of secularism actually get in the way of understanding the complex interaction of law, politics, and religion, and of the matrices of power within which they all sit and work. The conceptual blanket of secularism can cover up what's of most interest,

what's of most importance about the interaction of law, politics, and religion, namely, the proximity between the modern state law and religion. The ongoing salience of religion is a resource for politics, and the material justice questions that sit underneath abstract discussions of law and religion. In some ways, perhaps ironically, I hope that my reflections this evening have shown that we can learn a lot by sitting with, by inquiring into the concept of the secular. As we put pressure on it, as we poke at it, we find currents of history, of theology, of politics, But when it comes to our contemporary lives, in the end, it's a concept that hides more than it shows. And when we turn to discussing our legal and political problems, we would do well to set it aside.

Thank you. Wow, Ben. That was so thoughtful. And thank you for walking us through such an important question for us right now. I'm sure many of us will be watching what happens with the Supreme Court of Canada in Section 3. 33, it matters to all of us in terms of our rights and so on as Canadians. We're going to open the floor to questions. So I will moderate the discussion. So I do see a question in the back.

As Darren gets up there, I'll maybe pose a question. So, Ben, thank you for that overview of Quebec we really saw from the beginnings of New France until today. Can you, I mean, there are certain moments that. perhaps you didn't get a chance to talk as much about. One moment that I wondered if you would want to return to in thinking about the more contemporary moments and bills because of course Law 21 comes, I think, fourth or fifth round in which different Quebec governments

have tried to pass legislation. Can you take us back to the Bouchard-Taylor Commission, as it's sometimes called? This was a commission that was put in place by Jean Choray's government, in which he requested two scholars, philosopher and a sociologist, to look into what was then called reasonable accommodation and come up with some ideas. I wondered if you could take us back to that moment. Sure, thanks, Jen.

And it's actually a great example, I think, of the risks that I'm speaking about here. And so this report that yielded from this inquiry, this commission, our reasonable accommodation, one of its key features, actually, was that Bouchard and Taylor spent a great deal of time trying to distinguish versions of the secular. They explained the difference between open secularism, which is what they endorsed in the end and closed secularism. And this was a fairly central component of the way that they sought to explain the issues around religious accommodation in Quebec, which had been become an issue in the province, to explain how to think about those and perhaps how to approach them as a policy question. And I see a fairly straight line between that report and the use and emphasis on secularism. the law that I'm discussing now because one of the things that happened is that you have this commission with a lot of profile and a lot of thoughtfulness, wonderful scholars, wonderful thinkers

saying, ah, the way to hack this problem is get secularism right. And in one sense, what happened is successive Quebec government said, okay, great, let's do that. And it inaugurated in one reading of it, a project of trying to advance views of secularism as the way of addressing the kinds of issues that were on people's minds in Quebec. And so there is a way in which the issues that these successive bills and then law and then law and then a new bill now are all, unfortunately, extensions of the project from that report of saying what we really need to do is get secularism right. But of course, underneath it are the kinds of issues that trouble us. Underneath it are the kinds of issues that we're now concerned about. And so I think that's just a very vivid example

of the way in which secularism isn't just as a term in its political and legal uses. It's a very interesting term. It's deserving of study. It's wonderful to think with. But in its political and legal uses, it's not just confusing or indeterminate. It's actually, I think, in some forms, harmful and dangerous. Thank you. We have a question. Hi, thank you. That was wonderful. I'm a philosopher, as you know. And so I wonder if behind what you're saying about this last point, which I thought was really great, like, how does the, how does this operation of the ideal conceal our attention to the material? Like, I guess I'm just wondering about the theoretical background behind the things you're saying. I'm sorry if this is way

too abstract a question. Well, what I'm actually going to do, Shannon, is concretize it a bit and put it in the space that is one of the spaces I'm in, which is a legal system. So the problem you're describing is actually instantiated

in some ways in a legal system. Legislation is excellent at the general case, right, at the principle. But it runs against a problem pretty quickly, which is one way of putting it is life is infinitely more complicated and unruly than what you can imagine in Ottawa on Parliament Hill. And so we have systems of correction, and one of those systems of correction in Canada is common law, which reasons from a different sort of place.

It's excellent at the particular. It's quite a bit weaker at the general. And so you'll be better at this than I, but what might you take from that sort of material? material structure, that instantiation of that tension, about the kinds of things we need to navigate problems. We probably need both ideals and a kind of way of being sensitive to particular material, real, individual cases. You know, the law of sentencing, which is a great example of this, we have very broad ideals, but then a person shows up before a judge. And the ideal doesn't really tell us what to do. It tells us some things to think about, but of a very general character. And so I think a lot of the ethics of a legal system come in how you deal with the material,

not in how you articulate the principle. And I think very often we're misled into thinking that the ethical work is landing on the right ideal. And it's just not. It's on managing the material or the particular. Laura Liotz, I teach in the Department of Sociology and Criminology. At one point, I did a fair amount of research on secularism, and I was interested in re-enchantment, or the idea that, you know, as Christian religion declined, religious philosophies started showing up in other spaces. So I was particularly interested in New Age texts, so-called text. but there's scholarship on religious themes in movies and music and you know yoga's a religious

symbol meditation classes so I'm wondering if this concept of le sette is adopted by the highest court in the country how far could this outlying of religious symbols go like could that be used to you know we're not going to have movies about Harry Potter anymore. We're not going to be able to buy new age books. We can have the Oprah podcast in Canada. I'm not a big fan typically of the slippery slope boss. We're in the space right now where a lot of things are slipping down a lot of slopes. So could that be used for censorship, I guess?

Yeah, that's a really important, interesting question. And no one loves the slippery slope argument, but we do have to keep our eyes on the slippery slopes, right? And maybe your question gives me a chance to just kind of clarify what's about to happen. It doesn't exactly answer your concerns, but does frame them in a certain way. So what's not at stake on when the Supreme Court hears this law is whether our court will embrace Lysite. as a standard. That is not on the table.

What's happened is a provincial government has embraced it and then has used a section of the Constitution Act 1982, Section 33, to push aside the notwithstanding clause, the normal rules that we would have protecting from those kinds of slopes, right? The rights. And so the question you're really asking is, what's going to happen with Section 33? Because we're imagining a politics across the country

where what used to be the wisdom, the common thought, no government, apart from the early uses in Quebec of the notwithstanding clause that were related, remember to the fact that Quebec has never endorsed the charter. They've never signed on to that constitution. Apart from those early uses, no government would use Section 33 because the costs are too high. And that was the wisdom.

Canadians would say, you're out. You can't suspend rights in that way. And that's not true anymore. That's an important change in our law and politics in Canada. And so the question, and that's why I say, that's kind of the question you're asking, is what will happen in the capacity of a government that was so minded, right, minded to do the things you're describing? what will happen on the Supreme Court's decision about how closely Section 33 can be assessed? Because the thinking until this case has been, if a province invokes it, there's very little a court can say.

If it's properly invoked, if the procedures were followed and the form is right for five years, those parts of the charter are suspended in respect of that. law. And what section 30, what the case is centrally about, although it seems to be developing as adding some things potentially onto it, is, is that still the law? Is that all that we can say? Or are there limits on a government's capacity to suspend the operation of the charter? So that's the central piece in the case. And I think you're quite right to imagine it as, a absolutely pivotal moment in how we think about the balance between legislative authority and our Constitution. That's really what the case is centrally about. And thank you so much to Dr. Berger for one of the best lectures that I've ever had the privilege

of attending in this theater, and I've been to quite a few. So thank you so much. That was fantastic. Thank you. Canadian legal scholar Benjamin Berger delivering Memorial University's 2026 Henrietta Harvey Distinguished Lecture at the Rooms in St. John's Newfoundland. This episode was produced by Mary Link. Special thanks to Memorial University's

Jennifer Selby, who moderated the questions. Technical production, Sam McNulty and Ken Cave. Lisa Ayuso is the idea as well. web producer, senior producer Nikola Lukshic. Greg Kelly is the executive producer of ideas, and I'm Nala Ayyad. For more CBC podcasts, go to cbc.ca.ca slash podcasts.