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The Cardus Daily

Total Victory?

Naomi Biesheuvel  |  March 20, 2015  |  Education, Justice, Religion

Canada’s Supreme Court ruled on Thursday in favour of Montreal’s Loyola High School, finding the Quebec government violated the Jesuit institution’s Charter-protected freedom of religion.

“It’s a total victory for the school, for parents and for the [education] ministry because it upholds the full society’s value,” said John Zucchi, an appellant in the case and father of a former Loyola student. “It took seven years but I can say I never lost faith, never lost hope.”

The ruling is good news, agrees Janet Epp Buckingham of Trinity Western University, particularly for her school’s legal fight to open a Christian law school. “The Supreme Court of Canada has affirmed the communal aspect of religious practice and that Canada is pluralist and religion is to be affirmed,” Epp Buckingham says.

She adds it’s worth noting the decision was 7-0 for Loyola, and that a minority of justices disagreed with the majority only because they wanted to go further than their colleagues were prepared to.

“The court divided 4-3 on certain aspects of the ruling, particularly on the remedy,” she adds. “But all the judges ruled that the Minister of Education, Recreation and Sport violated religious freedom by denying Loyola an exemption from teaching the mandatory Ethics and Religious Culture (ERC) course.”

Still, is it accurate to call this decision a total victory? There are reasons for doubt.

Academic excellence

The verdict clearly upholds diversity in religious education. And this was exactly the outcome Michael Van Pelt, president of Cardus, hoped for when he became interested in Loyola in 2013.

“When you have the State say, ‘This is the one way we want to do things,’ what you’re doing in this case is constraining an institution with a long history—namely Loyola—and saying you can’t be who you are,” he says. “That’s not how we want to build academic excellence in Canada. That’s why we needed to be in this conversation.”

The Loyola decision, however, threatens to undermine the methodology that education is rooted in. In her comments for the majority, Madam Justice Rosalie Abella said:

What does it mean to teach about the ethics of other religions in a ‘neutral’ and objective way in the context of a religious school that is permitted to teach its own religion and ethics from a religious perspective? My starting point is that in a religious high school, where students are learning about the precepts of one particular faith throughout their education, it is arguably even more important that they learn, in as objective a way as possible, about other belief systems and the reasons underlying those beliefs.

But if the emphasis is on teaching “objectively” and “neutrally,” one imagines a class discussion that revolves around simplistic sharing of differences, without a thorough examination of why those differences exist. Wouldn’t this kind of pedagogy clash with the very concept of academic excellence?

“The approach recommended by the majority decision ultimately reduces religious practice to cultural distinctive of dress, ritual, or diet and does not provide the means to properly understand another’s religion,” says Cardus executive vice president Ray Pennings. “While it is difficult for anyone who does not share a belief to properly understand how practices that flow from a religious identity and belief ‘make sense,’ I would suggest that a more sympathetic teaching of Sihkism, Buddhism, or Islam will come from an honest, informed perspective that values the connection between identity, belief, and practice than a ‘neutral’ one which doesn’t give weight to the distinctive nature of religious identity.”

“The minority rightly describes the effect of this as coercing Loyola’s ‘into adopting a false and facile posture of neutrality,’” says Pennings. “Forcing insincerity or silence contradicts the very purposes of dialogue the ERC curriculum was designed for in the first place.”

Former principal Paul Donovan, however, doesn’t see the judgment and academic excellence as mutually exclusive. “We have never asked to teach Catholicism versus other religious faiths. That’s never been our [pedagogical] method,” he says. “Our method is to encourage our students in vigorous discussion, debate, and inquiry.”

The Supreme Court has left the responsibility for seeing how that kind of pedagogy will continue in the hands of Quebec’s minister of education.

Religious Freedom

The space in which this ruling is most decidedly a victory is that of religious freedom.

“It’s often hard to see Supreme Court rulings having an effect on our day-to-day lives,” says Van Pelt, “but this is one really good example where the judgment of our Supreme Court actually impacts how institutions live out their missions.”

In the 4-3 split, the minority was in considerably stronger support of religious freedom than the majority, explains Eugene Meehan, lawyer at Supreme Advocacy in Ottawa and former Executive Legal Officer to the Supreme Court of Canada. “The minority takes a traditional proportionality analysis and in doing so decides that corporations can enjoy religious freedom,” he says. “If the minority were the majority, that would be better."

Epp Buckingham agrees, noting that while both the majority and minority judgments strongly affirmed the collective or communal aspects of religious practice, the minority was much stronger in its assertion that freedom of religion must be a reality not only for individuals, but for organizations as well.

“The minority judgment would have granted Loyola High School, as a religious corporation, the right to religious freedom,” she explains, but “the majority did not rule on that point.”

This may be one of the most gaping holes this case has left open. A majority judgment on religious freedom for corporations would have, ideally, clarified the role of organizations much more explicitly. Consider the two recommendations published by Cardus Senior Fellow Jonathan Chaplin in a 2005 publication of the Ave Maria Law Review:

In the first place, an account of institutional rights will be one component of a wider account of institutional jural spheres: we need both to contextualize rights in relation to institutions, and also institutional rights in relation to institutional duties and powers. In the second place, an adequate theory of institutional jural spheres requires an account of the moral (or normative) purposes which institutions do and should pursue. It is these purposes, I shall suggest, which give legitimacy and point to the content of the jural spheres institutions possess.

And while Justice Abella was clear that the government dictating how Loyola ought to teach its students about Catholicism was a breech of freedom of religion, her views did not extend to the teaching of other religions.

“I see 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.”

Still, there is no doubt that protection of religious freedom was upheld by this decision.  Cited within the judgment was this quote from a 2012 article by Richard Moon:

Underlying the [state’s] neutrality requirement, and the insulation of religious beliefs and practices from political decision making, is a conception of religious belief or commitment as deeply rooted, as an element of the individual’s identity, rather than simply a choice or judgment that he or she has made. If religion is an aspect of the individual’s identity then when the state treats his or her religious practices or beliefs as less important or less true than the practices of others, or when it marginalizes her or his religious community in some way, it is not simply rejecting the individual’s views and values, it is denying her or his equal worth.

Cardinal Thomas Collins, Archbishop of Toronto, celebrates this recognition that to deny a person’s religion is to deny their very identity. “It is a most appropriate occasion to reflect on the reality that freedom of religion and conscience are both enshrined in the Canadian Charter of Rights and Freedoms,” he says. “‎It is our prayer that all citizens are afforded these rights in all circumstances."

“Secular” society

Underlying various aspects of the ruling is what many consider the true crux of the issue: Canada’s obsession with creating a secular society, and the pitfalls that the pursuit of this goal might bring.

Justice Abella argues that the brand of secularism Quebec’s education ministry sought to promote actually contradicted the intended outcomes of its own Ethics and Religious Culture program, says Peter Stockland, publisher of Convivium.

“As she says, a secular society does not extinguish religion but seeks to protect it as a key element of pluralism," notes Stockland, who covered both the Supreme Court hearing on the Loyola case in March 2014 and this week’s judgment.

"Her insistence on ‘neutrality’ in the teaching of other religious faiths and ethical systems is troubling primarily because it is such a delicately tortured dance between the ideal and the practically possible within any pedagogy. She herself acknowledges this even as she insists the ideal must be upheld and that the State ‘need not throw up its hands’ even in the face of the impossible.”

It does seem impossible. But though many hear yesterday’s decision with an unwavering fear of the steady march of secularism, there does seem to be reason to hope that the Canadian society our Supreme Court ruled for today will be, in the words of Justice Abella, a “vibrant, multicultural democracy.”

As she stated: “Part of secularism is respect for religious differences. Because it allows communities with different values and practices to peacefully coexist, a secular state also supports pluralism.”

In proper pluralism, there is space for adherents of all religions.

“This juridical confirmation from Canada’s highest court that we as a country and as a community can be divine, diverse, and diplomatic—without being didactic, dogmatic, or disruptive," says Meehan. "Godly people no longer feel like—nor be made to feel like—vegetarians working at Burger King."

There may be a pervasive feeling among those godly people, however, that this ruling came down to chance, or circumstance, or even a miracle. What about next time?

Pennings remains confident that “the reason Loyola won this judgment was that it had lived its mission. It wasn’t a watered-down Catholicism or accommodation, but rather a respectful-but-firm affirmation of its confession and consistency in all aspects of its operations that earned Loyola its legal victory. It is striking to note that there was no question that whatever the boundaries would be, Loyola would fall well within it.”

Thursday’s page in our turbulent chapter of Canadian history is absolutely worth celebrating. But as for “total victory”? The battle is won. The peace treaty remains to be signed.

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