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LexView 25.0 - Court Misunderstands the Meaning of "Secular"

From the Archived "LexView" Series

January 8, 1999

Is it legally permissible for a quasi-legislative decision-maker to make decisions which are motivated in part by religious belief? Does the Charter require that moral beliefs which originate from religious belief, be excluded from public debate? Does "secular" mean "non-religious"?

Chamberlain v. Surrey School District No. 36
British Columbia Supreme Court File No. A972046, Vancouver Registry
Date of Decision: December 16, 1998

In this issue:

  1. Key Terms
  2. Summary of Facts
  3. Significant Issues
  4. Decision and the Court's Reasons
  5. LexView Commentary

Key Terms:

role of religion in public debate; administrative law; meaning of "secular;" parental delegation and public education

Summary of Facts:

In British Columbia, the School Act grants school boards the responsibility of approving the educational resource materials which teachers use in classrooms. In 1995, the Ministry of Education implemented a new curriculum for kindergarten to grade 7, which included a "family life" component. In 1996, the Surrey School Board passed a resolution prohibiting the use of educational materials which were not on a prescribed list. Gay and Lesbian Educators of B.C. (hereafter GALE) prepared a list of books which intend to portray homosexual relationships positively. The Petitioner Chamberlain, a teacher in the Surrey school district, requested that three books from the GALE list be approved for use in teaching kindergarten and grade 1 students in the Surrey school district.

The three books were reviewed three times, by various levels of school district administrative staff, all of whom expressed the opinion that the books dealt with sensitive material and were likely to cause parental concern over the presentation of same-sex parenting to kindergarten and grade one children. The Superintendent thought that the three books were unnecessary for achieving the objectives of the school curriculum and, recognizing that the use of the books would be controversial among the parents in the community, decided that the final decision should come from the School Board which was elected by that community.

On April 24, 1997, the School Board formally considered the request for approval of the three books. The meeting was widely attended and submissions were received from one of the Petitioner teachers, a representative of GALE, and a representative of the intervenor BC Civil Liberties Association. The evidence is that the debate centered on the books raising sensitive issues "in which parents should be involved and their opinions given weight."

The School Board, by a vote of 4-2 passed a resolution declining to approve the books. The Petitioners applied to BC Supreme Court for a ruling that the resolution was invalid, and for an order requiring the School Board to pass a resolution approving the books in question.

Significant Issues:

Is it legally permissible for a quasi-legislative decision-maker to make decisions which are motivated in part by religious belief? Does the Charter require that moral beliefs which originate from religious belief, be excluded from public debate? Does "secular" mean "non-religious"?

Decision and The Court's Reasons:

The Court held that the School Board's resolution violated section 76(1) of the School Act, and was therefore ultra vires. Accordingly, the Court set aside the resolution, and remitted the issue of whether to approve the books back to the School Board for fresh consideration.

The School Board receives its authority from the School Act, and its decisions must be made in accordance with the Act, and in keeping with principles of administrative law. Justice Saunders began her analysis of the legal issues by considering section 76 of the School Act, which sets out the requirements for secular, moral education in public schools, in the following language:

"(1) All schools and Provincial schools must be conducted on strictly secular and non-sectarian principles.

(2) The highest morality must be inculcated, but no religious dogma or creed is to be taught in a school or Provincial school."

The term "secular" has been in the legislation since the 19th century, alongside provisions for mandatory observation of the Lord's Prayer and daily scripture reading. Amendments to the School Act in 1989 removed the religious observance provisions but left the term "secular" in the legislation. Justice Saunders interpreted the "strictly secular" conduct of schools to mean that "religious based education or management based on religious considerations" is prohibited. She equates "religious considerations" with "religious influence." And "religious influence" in her usage means something more than influencing students towards belief in, or practice of, some religion. It also encompasses the influence that religion belief has in shaping the moral judgments of a teacher or school administrator. But because decision-makers must nevertheless make moral judgments, and are indeed required by the Act to inculcate the "highest morality", Justic," Saunders had to distinguish between what she defines as "religious influence" and "issues of morality."

Rather than explain the difference in abstract terms, she attempted to illustrate it by reference to the facts of the case. Many of the affidavits filed on behalf of the School Board, she explained, demonstrated that many parents within the school district believe that homosexual activity is immoral, and many adhere to religious faiths which teach that homosexual activity is immoral. But, according to Justice Saunders, "highest morality," as understood within the School Act, must be defined by reference to "values" contained within the Charter of Rights and Freedoms. The "high moral line" must be consistent with the Charter, and must not be "based in a significant way on religious considerations."

On examining the evidence before her, Justice Saunders concluded that, "when the School Board passed the Books resolution, some of the trustees who voted in favour of the resolution were motivated to a significant degree by concern that parents and others in the School District would consider the books incompatible or inconsistent with their religious views on the subject of same-sex relationships." Additionally, at least one of the trustees was motivated by "personal religious considerations." In contrast, some jurisprudence under section 15 of the Charter has held that others' sexual preferences should be tolerated. She concluded that the school trustees, in coming to their decision of what kindergarten aged children ought to see, must have been motivated by moral judgments received through their religion. Because, on her reading, "the public school is a place independent of religious considerations," she determined that school management decisions which are motivated "in a significant way" by moral principles inspired by religious tradition, must contravene the School Act, and therefore be invalid. Rather than order the books approved, the matter was remitted to the School Board for reconsideration of their decision, following the directions of the Court that religious reasons could not be utilized.

LexView Commentary:

Justice Saunders noted that this is perhaps the first case to consider what it means for schools to be conducted on strictly secular principles. Although this case deals specifically with school boards and the BC School Act, the more general issues raised—the acceptable place of religious belief in public life—is enormously important and of wide application. Because the existing case law dealing with this issue is sparse and not cleanly set out, Justice Saunders' reasoning warrants close scrutiny. A good place to begin is to consider her controversial interpretation of the School Act provision that "all schools must be conducted on strictly secular principles." This is meant, she said, to "exclude religion or religious belief." This is a very general statement (i.e. to exclude from what, and to what degree?), which must be rendered more concrete before it can be used to guide school trustees, and before its soundness can be fairly assessed.

What then, could it mean to "exclude religion or religious belief" from school management? And does Justice Saunders' position necessarily flow from the Act's requirement to conduct a school on "strictly secular" principles? Justice Saunders could have taken the position that the management of a public school must not be subject to the direction of any church or religious organization, or that teachers must not use their position of influence to encourage (or discourage) any sectarian (e.g. dogmatic) religious belief. If this was the exclusion of religion which she had in mind, her reasoning would be consistent with existing law, and with much sound political and legal philosophy. But this is not what she meant.

Ultimately, she interprets "secular" (the terminology of the Act) and "to exclude religion" (her own terminology), as requiring that teachers and administrators not be "significantly influenced by religious considerations" in decision-making. The legal pedigree for this determination is suspect. The judge relied on the decision of Russow v. BC(AG) for support, but that case (a decision of the BC Court of Appeal) dealt with the permissibility of compelling religious practice (the recitation of the Lord's Prayer). But in claiming support from Russow, she unjustifiably equated educators taking religious and moral traditions into account in decision-making, with educators compelling student participation in a religious practice. She also completely failed to note that in the statutes' origin (where both the term "secular" and religious observance provisions co-existed) "secular" did not mean "non-religious" but, rather, "non-sectarian." It is not clear whether this point was argued before her Ladyship, but it is a crucial distinction which, had she attended to it, would have prevented a crucial flaw in her reasoning. Nothing in the Charter, democratic theory or principled pluralism requires that atheism be preferred to religiously informed moral positions in matters of public policy. There can be a large overlap between moral positions of all kinds—expressly religious or otherwise; therefore, a simplistic split between religion and morality is not warranted. That a moral position may be informed, bolstered or, in fact, grounded in religious belief ought not to make it publicly objectionable.

With this manoeuvre (reading "secular" as "non-religious" rather than "non-sectarian"), Justice Saunders is making new law, effectively dragging liberal principles in an illiberal, anti-religious direction. The only explanation that she attempts is to claim that her decision is consistent with "pluralism." "Pluralism" is not a principle of the common law or Charter jurisprudence. She is engaging in pure philosophy at this point. "Pluralism" denotes a complex bundle of ideas, and unfortunately Justice Saunders does not specify the sense in which she uses this term. However, in context, what she most likely means is that because there is no social consensus about the truth of any religion, it would be improper for a school to act as though the moral beliefs inspired by any religion have validity. This is not pluralism in the strong sense of tolerating a wide range of beliefs which do not imperil co-operative living (including religious beliefs.)

The crucial aspect of this decision is that religious belief is denied a place in public deliberation. It is permitted within the realm of private thought, but it may not be expressed in public debate. So those whose lives include a religious component, over ninety percent of Canadian citizens according to Statistics Canada figures, will find that their interests will be systematically excluded from public consideration. And yet historically, a great many social reformers have been motivated by religious belief. An obvious example is Martin Luther King Jr. and the American civil rights movement of the 1960s. Many of the leaders were clergy inspired by their faith to a view of the innate worth of individuals. However, Justice Saunders would now require that any moral vision that is inspired by a religious view of the world be excluded from decision making by officials elected, perhaps, on that very basis. This is a very strange view of pluralism and democracy and certainly not one that is covered by so-called "Charter values" which, while they expressly protect "freedom of religion and conscience" say not one word about "secularism."

There may be some logical difficulties with the legislative regime as adapted by Justice Saunders. As we have seen, the Act requires that schools be run on secular principles (which she eccentrically describes as a prohibition on "religious influence"), and at the same time inculcate the "highest morality" in students. This distinction between "religious influence" and "morality" looks from the start to be a difficult one to maintain; it is a trite observation that many principles of common morality (and indeed principles of law—see R. v. M.S., (1996) BCCA) have been drawn from religious belief and tradition.

Contrary to the formal argument presented, it is not "Charter values" which have dictated the judge's decision, but rather Justice Saunder's personal moral judgment. True, the Charter does posit a right to equal treatment. But equally, it protects "freedom of religion" and the law has determined that freedom of religion includes the right to "manifest" ones' religion. The law also recognizes the concept of parental delegation as being crucial to the validity of compulsory public education. Madam Justice Saunders first acknowledged parental delegation and then gutted the concept by failing to address how a pluralistically sensitive public school system could provide for recognition of dignity of the person and not infringe on the common religious (and frequently non-religiously moral) prohibition on homosexual or lesbian sexual conduct. Her reasons simply gloss over these fundamental points. The judge held that the religious freedom of the parents (to have their children educated in a manner which does not undermine their religious education) mattered less than the goal of demonstrating same-sex couples in a positive light to very young children. Applying any Charter right requires the unavoidable moral process of weighing competing rights. And given that the principles which the Charter posits are guaranteed only to "reasonable limits," the judicial act of determining what those limits are is a matter of reason—that is, the judge must make a moral choice about the extent of any right in question. To begin from the position that religion has no place in public deliberation is not only not warranted by the Charter, but attacks it from within.

A superficial understanding of concepts such as "secular," "pluralism," "religion" or "parental delegation" will damage the institutions that exist to promote proper freedom in Canadian society (the Courts amongst them). A much more rigorous understanding of pluralism and the place of religion and the family in all aspects of culture is essential to the maintenance of the "free and democratic society" called for in the Charter itself. It is hoped that the lamentable approach taken in this judgement is corrected on appeal or when similar issues present themselves in other cases.

This issue of LexView was researched and written by:
Iain T. Benson, B.A. (Hons.), M.A. (Cantab.), LL.B. of the British Columbia Bar
Brad Miller, B.Comm., LL.B, LL.M. (magna cum laude) of the British Columbia Bar.

LexView is a project brought to you by the Cardus Centre for Cultural Renewal, a not-for-profit agency. LexView is made possible through the donations of foundations, corporations and individuals. To inquire about making your contribution, please contact Cardus.

Copyright © 2010 Iain Benson and Brad Miller

LexView is an on-going review of judgments of Canadian courts that have an impact on the complex interrelationships between law, public policy, culture, moral reasoning and religious belief.

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