After 12 months of deliberation, the Supreme Court of Canada released its
decision this morning in
Loyola High School v. Quebec (Attorney General),
upholding religious freedom first for the Loyola Jesuit school but also
more broadly for all who seek to apply their faith to the education of their
children. This is a case that every independent Christian school across the
country has been watching closely.
At stake in this case was the religious freedom of parents and institutions
to educate children according to a worldview that might be different than
that of the State education bureaucracy. Thankfully, the Court was
unanimous in finding that religious communities can teach their own faith
to their children from their own perspective.
As you may remember, ARPA Canada led a coalition of 313 independent
Christian schools and 11 post-secondary institutions to intervene in the
case. The coalition was called the Association of Christian Educators and
Schools (ACES) and we argued that confessional schools must be accommodated
as an alternative to State-run schools.
André Schutten, Legal Counsel for ARPA Canada, was in the counsel lock-down
this morning and had opportunity to review the decision before it was made
public. He noted the following in a press release to the media: “Our hope
was that the Supreme Court would affirm hundreds of years of legal
precedent that parents are the first decision-makers for their children,
and that religious freedom includes the right to train children within a
particular worldview. This morning, the Supreme Court has delivered.” He
also said, “With this decision, the Court stood up for liberty and for
parental rights. While the Court could have been stronger in some places,
this is still a welcome decision.”
In light of this case, ARPA Canada will be encouraging our elected leaders
in Ontario, Manitoba
and Alberta
to rethink their one-size-fits-all approach to religion, ethics and
secularism. Over the past two years, these provinces have imposed a
particular religious – that is, secular – worldview on all schools through
Bill 13 (Ontario, 2013), Bill 18 (Manitoba, 2014) and Bill 10 (Alberta, 2015), while ignoring or
suppressing the freedom of religious institutions and families.
Parents ought to have the first and final say on the religious and moral
instruction of their children. While the State may assist parents in
educating children, they may not override parental decisions relating to
ethical and religious instruction. There has been a trend towards Statism
in education in Canada.
This decision gives hope to parents in stopping that slide.
However, there are problems with the decision as well. For example, the
majority found “no significant impairment of freedom of religion in
requiring Loyola to offer a course that explains the beliefs, ethics and
practices of other religions in as objective and neutral a way as possible,
rather than from the Catholic perspective.” (para. 6). If this means that
Christian schools should teach the factual elements of other religions
(e.g. the 5 pillars of Islam, the 8-fold path of Buddhism, etc.), then
those facts can be taught relatively objectively (and all the Christian
schools I know do that anyway). However, it remains unclear whether and how
much those ethics and beliefs of other religions can then be critically
evaluated through a Christian worldview. Further, a deeper issue is the
Court’s assumption that the State has the authority to tell schools and
parents what must be taught.
Despite the shortcomings of the judgement, we should still see this as a
win. The court states, “A secular state does not – and cannot – interfere
with the beliefs and practices of a religious group unless they conflict
with or harm overriding public interests… A secular state respects
religious differences, it does not seek to extinguish them.” (para. 43) For
now, this is a fine statement. However, “respecting religious differences”
is susceptible to changing “public interests”.
The crux of the decision is found in paragraph 62, where the Court ruled,
“To tell a Catholic school how to explain its faith undermines the liberty
of the members of its community who have chosen to give effect to the
collective dimension of their religious beliefs by participating in a
denominational school.” This is a robust defence of independent Christian
schools. The court goes further in paragraphs 63 to 67, outlining how the
actions of the Quebec Minister of Education “interferes with the rights of
parents to transmit the Catholic faith to their children… because it
prevents a Catholic discussion of Catholicism. This ignores the fact that
an essential ingredient of the vitality of a religious community is the
ability of its members to pass on their beliefs to their children, whether
through instruction in the home or participation in communal institutions.”
(para. 64).
Finally, when reading the decision, paragraph 70 seems to come across very
strongly in our favour: “Catholic doctrine and Catholic ethics are simply
too intertwined to make it possible to teach one from a religious
perspective and the other neutrally.” It seemed the Court understood the
nature of religious education: the worldview is holistic and informs all
aspects of education. But, curiously, the Court steps way back from that in
the very next paragraph by stating that “requiring Loyola to teach about
the ethics of
other religions in a neutral, historical and
phenomenological way would not interfere disproportionately with the
relevant Charter protections implicated by the decision.”
The Court appears to believe that simply teaching the objective facts about
various religions is required, which (as discussed above) most Christian
schools do anyway. When it comes to ethics and religion and morality
however, it seems open still to Christian schools to then evaluate those
religious worldviews from our own perspective.
Again, this ruling can be celebrated as a win. The court sets out a clear
defense of communal religious rights, makes good references to parental
rights and in the end ruled for religious liberty. While we would have
loved a much stronger and broader decision, considering the legal context
and cultural climate we find ourselves, this case is a step in the right
direction.
On behalf of the entire ARPA team, we give thanks first to our providential
Father who has blessed the work we have all done together and surrounded us
with such a supportive community. We are so thankful for the ongoing
encouragement of the Christian community for the work we are privileged to
do. And we say a special thank you to Ian Moes, lawyer in British Columbia, for his exceptional
help on this particular case.
To read the Loyola decision of the Supreme Court of Canada,
click here. To read the ACES factum (written legal
arguments),
click here. For a background on the Loyola case,
click
here.
André Schutten, Legal Counsel
and the entire ARPA team
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