Loyola, a private high School in Montréal, is being forced to suppress its Catholic convictions when it teaches the Québec government’s Ethics and Religious Culture course (“ERC”). The Québec Court of Appeal appeared to suggest that there was no reason for Loyola to be concerned because it has the rest of the week to teach the Catholic faith outside of the ERC. “That would be like telling an observant Jew or a Muslim not to worry because there is only a little bit of pork in the soup,” wrote Loyola’s lawyer in his submission to the Supreme Court of Canada.[1]
You may have noticed that recently Québec has been a cauldron of angst regarding all matters religious. The current debate over the “Charter of Values”[2] is forming a dynamic backdrop to Loyola’s opposition to the government’s imposition of the ERC as it now gets ready to have its case heard in Ottawa.
The school does not object to the ERC goals (recognition of others and pursuit of the common good) or competencies (ethical reflection, understanding of religion, and dialogue), but it does object to the ERC’s restrictions against the teacher sharing his/her religious or ethical views in the classroom. When the school asked for an exemption to the ERC and the right to use its own curriculum instead, the government said no because the school’s approach was faith-based rather than “cultural”. In cross examination, government officials agreed that during the course a Catholic teacher could not favour one moral position, such as marital fidelity, over another.[3]
The Québec government is also making a strident argument that religious corporations do not have a right to religious freedom. Religious freedom, they argue, is only for individuals. I am doubtful that the Supreme Court will buy into that position since the Court has recognized in the past that religious freedom has communal aspects.[4] However, the Court has not categorically defined exactly what the parameters are for the religious freedom rights of religious bodies as distinct from individuals. This case is a prime opportunity to address the issue. Should the Québec government convince the Court otherwise, then we can expect serious challenges to the operations of religious communities in the future—particularly their internal governance.
Background
Loyola High School in Montréal is an all-boys private school run by the Jesuit Order and a registered charity. As a confessional school, it’s very purpose is to inculcate the teachings of the Roman Catholic Church for the next generation of young men. It is very open about that goal. It is why it exists. In fact, the goal of teaching the faith to the next generation is the reason why private Christian schools operate throughout all of Canada. In many ways, the future of such religious communities are dependent on the successful transmission of the faith that occurs in the schools. For this reason, what is and is not taught in the classroom is a cause of great concern.
Government also has an interest in education. Properly educated citizens have the means to take on their responsibilities to ensure our liberal democracy operates in its best form. Failure to educate a child contributes to financial and emotional poverty. Such a cost is not in our society’s interest. It is not surprising, therefore, that education is the lightening rod that is given to the stakeholders—parents, church, and state.
The Problem
Loyola’s core objection to the ERC is that the teacher of the ERC is not permitted to share his/her religious or ethical views in the classroom. In other words, Loyola’s teachers cannot use the Roman Catholic viewpoint when instructing their students; they cannot uphold Catholic teachings on ethical issues or teach that the Christian understanding of God is true.
In short, during the time the ERC course is taught, Loyola is expected by the Québec Government to lay aside its Roman Catholicism. It must be neutral. For all intents and purposes during that time it ceases to be a Roman Catholic school. In this way, the state has carved a “neutral” space out of a private religious school’s schedule for students to be taught religion and ethics from a secular point of view.
The Road To Court
Loyola requested of the Québec Ministry of Education, Recreation and Sport (“MELS”) an exemption from the ERC on the basis that its own program meets the two objectives and the three competencies. MELS denied the request on the basis that Loyola’s program was “confessional”—it taught from a faith perspective, and that was unacceptable.
At the trial court, the judge said that the MELS decision could not be based on confessionality but only on the basis of whether Loyola’s program was equivalent. The Québec Government argued that because Loyola was a corporation, it did not have the right to religious freedom. The trial judge disagreed with the government and held that as a religious corporation and as a religious school it benefited from freedom of religion.
The judge was not impressed with how MELS handled the matter and said that violating the religious freedom of Loyola was comparable to the treatment of Galileo by the Roman Catholic Church in the 17th Century. The violation was not justified in a free and democratic country.
The Québec Court of Appeal (“CA”) took an opposite position to that of the trial judge. The CA did not address the Québec government’s argument that it had no obligation to guard the religious freedom of Loyola because Loyola was a corporation and had no right to religious freedom. As far as the CA was concerned, the government’s decision was reasonable, and given that government sought to “deconfessionalise education,” it had every right to use confessional manner of teaching as a criteria to deny Loyola’s request for an exemption.
The case is now before the Supreme Court of Canada. Loyola has filed its factum. Potential interveners have until December 2, 2013 to apply for permission to intervene in the case.
Why CCCC is Involved
As a membership organization of over 3,300 Christian charities across Canada, the CCCC views religious freedom as integral to the right of religious organizations to continue their ministries of service. The following reasons outline why CCCC has taken the decision to apply to the Supreme Court for Intervener status:
- To highlight the importance of our Christian identity. Religious organizations are groups of like-minded individuals who have come together to practically implement their religious beliefs. For example, a group of individuals who are Mennonites may want to organize a peace and reconciliation ministry as a public expression of their theological understanding of the Gospel of peace as taught in the New Testament Scriptures. Though this organization might be carrying out work that a secular or a non-religious group may want to start, the fact remains that it was this particular religious group who came together and they ought to be permitted to carry out their faith in the manner they so choose. The ability to carry out those works of service requires each organization to maintain their own Christian identity as they understand themselves.
- To reinforce the historical importance of freedom of religion. The Supreme Court of Canada has noted that religious freedom has historically been prototypical. Chief Justice Dickson wrote, “Religious belief and practice are historically prototypical and, in many ways, paradigmatic of conscientiously‑held beliefs and manifestations and are therefore protected by the Charter.”[5] This suggests that religious freedom was often the first freedom in western democracies, followed by other freedoms, such as freedom of speech, freedom of assembly, and so on. In the modern era (since the Reformation), it has been religious freedom that has led the way to even greater civil liberties. In the 20th Century, country after country that denied religious freedom denied all other freedoms. Freedom of religious institutions has a long historical presence with freedom of religion for the individual. They are symbiotic .
- To examine and clarify the legal perspective on the religious freedom of religious institutions. There has been little discussion in constitutional jurisprudence about the religious freedom of religious institutions. This case presents an opportunity for the law to develop its understandings in that regard. While we have yet to have a detailed analysis of the religious freedom of religious institutions, there have been a number of statements that suggest the law already has an understanding of this concept, though it has not been as clearly articulated as it should. Justice Rand, in a 1953 decision, stated:
Strictly speaking, civil rights arise from positive law; but freedom of speech, religion and the inviolability of the person, are original freedoms which are at once the necessary attributes and modes of self-expression of human beings and the primary conditions of their community life within a legal order.[6]
Justice McLachlin stated that she agreed “that religious freedom has both individual and collective aspects.”[7]
- To avoid potential consequences. What if religious institutions are not recognized as having a religious freedom right? The following challenges come to mind:
- Discrimination. There is a growing trend to view faith-based practises as discriminatory. For example, religious organizations that only hire those who are in harmony with their faith commitments may be viewed as discriminatory.
- Identity. As outlined above, if religious institutions do not have religious freedom, then they will be forced to lose their identity and adopt a secular framework.
- Devaluing of Religion. Should religious institutions not have religious freedom, then one has to wonder whether the secularizing forces will target the so-called privileges of religion—property tax exemption for church properties.
- To educate. By intervening in this case, CCCC is taking responsibility to educate the Canadian judiciary and society at large about the important role of Christian charities. Some members of society appear to be of the view that the stronger a person’s religious conviction, the more they disdain others. However, we know different. Our 3,300 members work day in and day out in service for others. We serve not expecting a thing in return. The false assumptions of the nature of religious organizations are to be challenged. By taking an active role in this case, we are affirming the rights of religious communities across the country to be true to their faith inspired commitment to respect and serve others with an open heart.
[1] Appellants Factum filed at the Supreme Court of Canada (File No. 35201) at para. 99.
[3] Appellants Factum filed at the Supreme Court of Canada (File No. 35201) at para. 21.
[4] Alberta v. Hutterian Brethren of Wilson Colony [2009] 2 S.C.R. 567.
[5] R. v. Big M Drug Mart Ltd. [1985] 1 SCR 295
[6] Saumur v. City of Québec, [1953] 2 S.C.R. 265, p. 329
[7] Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567 at paragraph 31.
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Thank you, Barry, for this balanced and clear explanation. I am glad that the CCCC is involved in this case in partnership with others. Michael
Thank-you for making us aware of this issue and for CCCCs action on behalf of Loyola. The protection of religious freedom is essential in Canada especially in light of Quebec’s proposed Charter.
We appreciate your support.
Thanks Michael – it is important that we work together on these matters!
Thanks for updating me on this matter. It’s hard to believe we are having this case in Canada- I trust the Supreme Court will vindicate our corporate religious rights
Hi Larry, yes it is odd to those of us who live within a Christian milieu. However, for an increasingly secular world they are looking through very different glasses. That is why we have to try, at least, to share exactly what we do as Christian charities and why our society benefits from our work. What the secular mind does not seem to understand is the religious motivation behind our work – and what it takes to keep that motivation. What is required, of course, is the maintenance of our Christian identity. But if you take away our identity (which is what the secular mind does not appreciate) you take away the motivation. All the very best in your ministry!
If you are determined to stand by some outdated and meaningless idea or ideal, yes I believe religion is outdated, I quite frankly believe that organized religion should be abolishedI was watching this morning the World vision appeal for handouts, I understand their picturing children because that is what pulls at the heart-strings, but can these groups not realize that all they are accomplishing is to perpetuate the problems in these areas?
The land is incapable of supporting these people so by feeding a few which on the surface sound admirable, results in one more mouth that he land cannot support we , or rather well meaning but deluded religious groups are overstepping the bounds of nature and natural selection that hat have maintained the sustainable populations in these areas for decades or centuries
Hi James,
Thank-you for taking the time to comment on this post – I am sure that you will not be surprised by the fact that I do not agree with your position that religion is outdated and that our good works in reaching the poor is in violation of natural selection. Coming from different worldviews as we do – it is important that we respect each other’s position. From my Christian perspective I see every human being as made in the image of God – that means each has an inherent dignity to life, freedom and without fear of their security. Further, I understand it my role to help all those in need. This is why Christian charities exist – to help others – to alleviate the pangs of hunger, to shelter from the chilling wind, and to educate the illiterate – all to ensure they have an opportunity to live life to the fullest.
Excellent analysis Barry! This is a very interesting and important case. Please do keep us informed of future developments.
Hi Keith, Thanks! Indeed we will let you know how things transpire.
it is encouraging to see that CCCC adds it expertise and perspective to the growing list of interveners in the Loyola appeal to the Supreme Court. This appeal will consider and decide of fundamental issues of parental responsibility for the education of their children. The decision in this case will provide precedent for the provincial courts and legislatures that have a direct responsibility for structuring education in Canada. The thinking represented in the decision of the court will provide additional clarity to provision in the Charter concerning the relationship between the “best interest of the child” from the perspective of parental rights/responsibility and the role of the state. If the Christian/faith community does not provide a vigorous defence of the primary role of parents as the educators of their children the statement of Nicholas Walterstorff. ” When responsibility goes unexercised, then the legal right to exercise it will eventually be seized from us.” This opportunity requires the people of God to intercede faithfully for the wisdom of God to prevail.
Thanks Trevor for your thoughts! We are mindful of maintaining the space for Christian charities – including Christian schools – to operate. This is a very important case that will affect the legal understanding of religious freedom for decades to come. We appreciate your support!
Thank you for intervening here. How key it is for all Christian communities to support each other irrespective of denomination. Thank you so very much!
Hi Monique – I appreciate your thought – religious freedom is no respecter of persons – we all have it or we all do not – therefore it is imperative that we work together on such matters! All the very best!
I have a strong belief that Christians should enrol their children in the secular schools in their community. In John 17:15 Jesus prays: “My prayer is not that you take them out of the world but that you protect them from the evil one.” As a Christian and as a teacher, principal and school superintendent, I found that many parents used Christian schools to either fill the instructional void in their own families or to protect them from the evil influences in classrooms or playgrounds. The result was that they removed the Christian witness and influence provided by their children and them selves. However, I also believe that parents and organizations have the right to form religious schools and what is taught in them must be protected by the freedoms we have. How far does religious freedom go? I suggest that religious freedom ends when the school/religious organization promote beliefs that lead to the destruction of the state, such as ultra conservative Muslim or Sikh schools. This is clearly not the issue with Loyola.
Hi Brian – thanks for your comments. You raise an important point. Perhaps, in some situations Christian parents who are ever mindful of the spiritual condition of their children may sense that it is in the best interests of their children to be in secular schools. There is something to be said about maintaining a Christian witness in a secular world – however many are of the view that their children need more grounding in the faith before they are to face the secularizing forces. It is certainly a matter that one will want to bathe in prayer. When it comes to our children nothing, absolutely nothing, on this earth compares to the worry and concern we have, as parents, for our children’s spiritual condition. Thus our deepest concern for maintaining the right to educate our next generation in the faith.
All the very best!
It is important to do what we can to preserve the liberties we often take for granted. The news today of the case in Quebec where children are being removed from their parents, who are super orthodox Jews and have been home schooling the children is a case in point. It is claimed that the hygiene conditions in the homes were below par and their basic knowledge of math was lacking. I don’t think that all of these can be measured at every age level and the results at the end of elementary or high school are of more importance as long as the children are not suffering from physical abuse. The Quebec government seems to want to pour all people and children into the same secular and godless mold.
Herbert thank-you for your thoughts. Your point on not taking our freedoms for granted is well said. The price of liberty is constant vigilance is a saying that come to mind! All the best.
I’m horrified that this is happening. I intend to make as many people as possible aware of this. To take the chance for children to learn of the peace and hope God desires us to have would be tragic! It is already tragic that not even God’s love in creation cannot be taught in the public school – Not even as a theory.. which is bizarre being that all other theories of how this world came into being are taught. The devil is most certainly doing a good job. Love – God is love. Love and hope of a future with Jesus in a perfect world is the greatest motivation anybody can have in this life to do good. Take away all knowlwge of God and destroy any wisdom from our land. you take true love away and then what will we have?!
Alisa this is, as you appreciate, a very important case for the freedom of religion in the educational setting. Thanks for letting others know!
Thank you for your organization’s legal challenge. Your work is invaluable for all Canadians. It seems to me that denying religious freedom for “corporations” is tantamount to denying freedom of association. If like minded individuals are banned from collectively exercising their personal religious freedom, then their supposed freedoms are so significantly curtailed so as to render their public expression practically meaningless. I am absolutely shocked that this is the position of the Quebec government. They seem very hostile to individual liberty indeed.
Glenn I think you have struck on something that is very important. Freedom of religion and freedom of association are related rights – the idea of a group of people coming together for a common religious cause is a reality that goes back for 1000s of years. Certainly in this country the right of religious groups to practice their faith is nothing new – what is new is having a provincial government argue that it ought not to be protected. All the best.
I’m glad for your involvement. Keep up the good work! Mark Shipowick