On March 25, the Canadian House of Commons voted to repeal the good faith religious opinion defense in the Criminal Code. The defense has been there since 1970. It protected anyone who, in good faith, expressed or attempted to establish by argument an opinion on a religious subject or an opinion based on a belief in a religious text. The Bloc Québécois reportedly made the repeal a condition of its support for the government’s anti-hate bill, and the Liberals accepted. The government says that nothing will change, that the Supreme Court’s narrow definition of criminal hatred already excludes sincere religious speech. I find this difficult to take seriously. Until now, a Canadian pastor or imam who preached a difficult scriptural passage on sexual ethics or family law could point to an explicit provision in the Criminal Code that recognized sincere religious argument as categorically protected. That provision is now in jeopardy. Its proposed removal tells religious communities something about where they now stand in the eyes of the state.
What Canada is doing, I believe, amounts to a new kind of secularism. I would call it offensive secularism. I do not mean the secularism that keeps the state out of theology, the kind that most liberal democracies practice and that I respect. I mean something more aggressive, something Quebec has been rehearsing for years with its ban on religious symbols in public employment and that the Bloc Québécois has now exported to the federal Criminal Code. This secularism does not simply prevent the state from imposing religion. It compresses the space in which religion may speak in its own voice, treating sincere conviction as just another opinion deserving suspicion when it says uncomfortable things.
A judicial threshold tells prosecutors what they must prove after laying a charge. A statutory defense tells citizens what they may do before they speak. In fifty years, the repealed defense was never successfully invoked to shield hatred. Not once. What it did was give notice that the Criminal Code drew a line between sincere doctrinal argument and criminal vilification. That notice is now at risk.
The repeal rests on the premise that the state should not single out religion for special treatment. I think this premise is deeply mistaken, and Charles Taylor has spent decades explaining why. Secularism, Taylor argues, is not the neutral default produced by subtracting religion from public life. It is a historically constructed stance, what Taylor calls the “immanent frame,” within which belief and unbelief become competing options rather than settled facts. A state that strips legal protection from religious discourse in the name of neutrality has not achieved neutrality. It has taken sides. Taylor chaired Quebec’s own commission on reasonable accommodation and recommended what he called “open secularism,” the recognition that a diverse society must make room for religious conviction rather than flattening it into a single secular mold. Bill C-9, if enacted, does precisely the opposite. A secular legislature has decided that religious reasoning no longer warrants its own statutory defense, while every other form of public interest speech retains one.
Even Jürgen Habermas, of the Frankfurt School, reached a similar conclusion from a radical secular starting point. In his 2004 dialogue with Joseph Ratzinger, Habermas accepted that the liberal state depends on normative sources it cannot itself produce. He argued that secular citizens bear what he called a “cognitive duty” not to dismiss religious contributions as irrational. A criminal statute that would strip the legal recognition of sincere religious argument does the opposite of what Habermas urged.
I care about this not only as a legal scholar but as someone who thinks religious liberty is poorly understood in our time. It is usually treated as one right among many. But this misses what is at stake. Religious liberty is the freedom that concerns conscience, and no freedom runs deeper. Consider what it means, concretely, for a rabbi teaching Talmudic sexual ethics, or a Catholic bishop restating the Church’s teaching on marriage, to know that the explicit statutory recognition of their good faith is being withdrawn. They may still be protected by the high threshold for criminal hatred. But they have lost the assurance that the law sees their speech as belonging to a protected category in the first place. Newman called conscience the “aboriginal Vicar of Christ,” the voice that speaks in the soul before any institution or court. The state’s authority, however broad, finds its limit at that threshold.
The repeal was pushed through despite the united opposition of Catholic bishops, Muslim organizations, Orthodox rabbis, evangelical churches, and the Canadian Civil Liberties Association. The First Commandment is: “I am the LORD your God: you shall not have strange gods before me.” The people of Israel violated that commandment when they melted their gold into a calf and worshiped it in the desert. They did not set out to commit idolatry. They were afraid, and they wanted something manageable in place of a God who had become uncomfortably silent. A Parliament that claims the authority to decide which convictions about the sacred may be spoken aloud is fashioning its own golden calf. The Canadian Senate should refuse to accept it.
