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The 'Mosqueteria' and Canada's Fuzzy Church-State Line
by Ann Snyder
Over the past few months, a "mosque" in Toronto has inspired quite a hubbub in the blogosphere and Canadian press, even prompting demonstrations, including some in September. As in many mosques, the genders are segregated, with males sitting in the front and females in the back, but it is the location of the "mosque" — a public school — that initiated the controversy. The Valley Park Middle School basically converts its cafeteria to a temporary mosque in which Muslim students hold Friday (jum'ah) prayers.
The arrangement at Valley Park has triggered a heated discussion that offers an opportunity for Canadians to reconsider the appropriate boundary between church — or mosque — and state, and for Americans to be reminded of what works well within their legal system that draws a fairly robust line between the two.
Transforming the lunchroom into what has been called a "mosqueteria" on Fridays reportedly was a response to a sizable portion of the school's Muslim-majority student body (around 80%) leaving to attend a local mosque, not returning promptly thereafter, and missing a lot of class time. To address the issue, the school's principal, Nickolas Stefanoff, "revived" a similar program used by the school several years earlier. The meeting minutes of the Toronto District School Board (TDSB) from November 24, 2008, describe the initiative under "other business," which ironically references another program aimed at raising the confidence and self-esteem of girls at school. (Perhaps what transpires in the cafeteria on Fridays is not helping.)
Though it has been operating for the past three years, the "mosqueteria" came to wider public attention recently when the Blazing Cat Fur blog covered the story, including complaints reportedly from parents who disapprove of the practice. While a religious service taking place in a public school started the controversy, it is the disturbing image of the gender-segregated cafeteria — with boys at the front, girls separated by a barrier and far behind them, and menstruating girls excluded at the back — that fueled the fire and sparked opposition from across the political spectrum.
Prominent among the myriad objections is that, by occurring within a public school, the services create the appearance of state endorsement and possible pressure for other students to conform. Further, while a person's right to free exercise of religion should be supported even if it includes gender discrimination, which many abhor, it becomes another matter entirely when carried out under the auspices of the state in a public school. At that point free exercise butts heads with equal protection. However, "fixing" the gender segregation problem alone would just spawn another: government entanglement in religion and interference with free exercise. Finally, denying Muslims the right to hold prayer services because some aspect of them is objectionable, but allowing other religions to proceed, introduces the specter of discrimination.
Each of the above concerns has been raised in the debate surrounding the "mosqueteria." But what is the solution?
In the United States, the solution is the principle of the separation of church and state. Appeal to this principle helps avoid inappropriate church-state entanglements and resolve them if the line is transgressed. Today, the facts of the Valley Park case — an organized religious service in a public middle school during school hours where the attendees are minors and students at the school — would yield a relatively straightforward assessment: an unconstitutional violation of the Establishment Clause. (In one noteworthy example, the ACLU's Minnesota chapter filed suit against the Tarek ibn Ziyad Academy charter school because it "has been shown to advance, endorse, and prefer the Muslim religion over other religions or nonsectarian approaches in connection with school activities.")
Alas, this case is in Canada, where the line between church and state is sometimes less clear. Though the Valley Park debate has raised many separation-type arguments, one Canadian writer humorously congratulated folks for identifying "a serious threat to a principle on which our nation wasn't founded." But all joking aside, it is the fuzzy church-state line that has created the problem and made it harder to resolve fairly.
Indeed, Canadians are divided on whether the prayer services constitute a permissible, even required, accommodation or are against the law. Opponents say that they violate Ontario's Education Act and, in particular, the regulations to the act prohibiting religious services or indoctrination during normal school hours. For its part, in a released statement, the TDSB describes allowing the services on campus merely as a "religious accommodation." The TDSB appears to claim that the practice at Valley Park is permitted under the Education Act and that even if it were not, "Where religious accommodation is concerned, the law is quite clear: freedom of religion in the Canadian Charter of Rights and Freedoms supersedes the Education Act."
Well, at least this much is clear: the law on the matter is confusing, as Canada does not draw the relatively robust line between church and state that exists in the U.S. Ezra Levant's interview with Ed Morgan, professor of law at the University of Toronto, provides insight into the complexities of the issue.
According to Morgan, following the adoption of the Charter, two Ontario cases resulted in rulings that one cannot have either religious indoctrination or mandated prayers in public schools. The "mosqueteria" appears to run afoul of both. However, the Friday prayers are not mandated and the students attend with parental permission. The pivotal Zylberberg case involved a law requiring the recitation of the Lord's Prayer in school but with a chance to opt out; Morgan wonders whether the opt-in Friday prayers are functionally different and may serve as a test case on the issue. In the background of all of these questions is that Ontario permits Catholic public schools that raise many of the same concerns presented by the "mosqueteria."
In response to the controversy, Dalton McGuinty, Ontario's premier, argued that in matters of religious accommodation, schools in consultation with local communities are in the best position to provide solutions. "So when it comes to faith matters I have faith in school boards, I have faith in schools themselves to make judgments that they think are appropriate in their particular circumstances," said McGuinty.
His faith is misplaced.
First, if unchecked, majorities often design systems and rules that work for them, sometimes to the detriment of others. Indeed, concerns are already being expressed about how non-Muslims and even members of minority Muslim sects like the Ismailis and Ahmadis, who are frequently deemed non-Muslims by majority Muslim groups, might fare at Valley Park. Also, will Muslims who might otherwise have chosen to forgo Friday prayers now feel pressured to attend? This type of pressure was considered relevant in Zylberberg. ("Whether or not there is pressure or compulsion must be assessed from their [religious minorities'] standpoint and, in particular, from the standpoint of pupils in the sensitive setting of a public school.")
Second, state meddling in religion is tricky business and comes at a price. Once government decides to do it, it is hard to strike a reasonable balance between too much and too little. A little entanglement of state and religion often leads to more difficult questions like what to do when a permitted religious practice runs counter to some other right. Allowing the "mosqueteria" to be set up at the school was the first step toward entanglement. Now the school is faced with gender segregation concerns that appear to violate equality rights under the Charter of Rights and Freedoms as well as the TDSB's own gender policy. However, its board members feel hamstrung because they "do not have the authority to tell faith groups how to pray."
The point is that school boards should never need to address an issue like this at all. There is a relatively clear solution: drawing a sharper line between church and state. Here, Canada could take some guidance from its southern neighbor, an approach that is not without precedent in cases involving freedom of religion.
If a "mosqueteria" with gender segregation is required to help Canadians rethink the issue, then something good might come out of the controversy after all.