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Loyola decision hailed as victory for religious freedom

By Deborah Gyapong
Canadian Catholic News

03/25/2015

OTTAWA (CCN) — The Supreme Court of Canada’s 4 - 3 Loyola decision March 19 has been hailed as a victory for religious freedom.

“This is a wonderful day for us,” said John Zucchi, a Catholic parent who engaged in a seven-year court battle to ensure Loyola High Shool, a private Catholic school in Montreal, would have the right to teach the Quebec’s mandatory Ethics and Religious Culture (ERC) program from a Catholic perspective.

Zucchi told journalists his decision to put his son in Loyola was not to “put him in a religious ghetto, a Catholic ghetto” and that part of the Jesuit high school’s identity was to be “completely engaged with the world.”

“I was really delighted that the court upheld this precise Catholic identity through which the school is teaching,” he said.

Zucchi noted that Canada is a multicultural and pluralistic society and “we uphold diversity.”

“This judgment is saying our voice does not need to be shut down in order to promote diversity,” he said.

Loyola High School had sought an exemption from the ERC program, offering instead to teach its own world religions and ethics from a Catholic perspective.

“Although the state’s purpose here is secular, requiring Loyola’s teachers to take a neutral posture even about Catholicism means that the state is telling them how to teach the very religion that animates Loyola’s identity,” ruled the majority in a decision written by Justice Rosalie Abella. “It amounts to requiring a Catholic institution to speak about Catholicism in terms defined by the state rather than by its own understanding of Catholicism.”

“It also interferes with the rights of parents to transmit the Catholic faith to their children, not because it requires neutral discussion of other faiths and ethical systems, but because it prevents a Catholic discussion of Catholicism,” the court ruled. “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.”

The stress on parental rights in the decision pleased Andre Schutten, legal counsel for the Association for Reformed Political Action (ARPA) Canada, who represented a coalition of 313 independent Christian schools and 11 post-secondary schools that intervened in the Loyola case.

“We’re very pleased with the outcome,” Schutten said. “We are happy to see the Supreme Court has upheld religious freedom in this country and upheld the right of religious schools to teach from their own confessional perspective.”

“AARPA will be taking this decision to various provincial governments that are infringing on parental rights and religious freedom,” he said, identifying Bill 10 in Alberta, Bill 13 in Ontario and Bill 18 in Manitoba that use anti-bullying legislation to impose Gay Straight Alliances (GSA) on all schools.

The majority justices, however, narrowly defined this right to discussion of the Catholic faith within the ERC. It denied Loyola’s proposal to also teach the ethics and morality of other belief systems through a Catholic lens.

“Even if Loyola’s teachers do so respectfully, this fundamentally transforms the ethics component of the ERC Program from a study of different ethical approaches into a class on Catholicism,” the majority decision said. “The result is that other religions would necessarily be seen not as differently legitimate belief systems, but as worthy of respect only to the extent that they aligned with the tenets of Catholicism.”

“This contradicts the ERC program’s goals of ensuring respect for those whose religious beliefs are different, a goal no less worthy in a religious school than in a public one,” Abella wrote.

Loyola’s principal Paul Donovan told journalists the decision does not interfere with the methods the school has always used to teach various subjects.

Donovan said the problem came in the ERC perspective that “faith and beliefs are non-rational.”

“In the Catholic perspective, faith is a reasonable thing,” he said. “It’s an approach, not a set of beliefs we want to be able to use.”

Rather than limit Loyola, the decision “confirms what we do,” he said, noting that the methodology that is part of the Jesuit tradition “encourages debate and discussion.”

However, at the end of the day, the school wants to ensure that if “students are going to accept or reject something the church teaches” they have to know what it is they are accepting or rejecting, he said.

Donovan said Loyola shares the ERC’s goals of helping students “recognize the value of others and the pursuit of the common good.”

Quebec’s education minister is instructed to consider Loyola’s request for an exemption in light of the ruling.

“I see this as a total victory both for the parents, for the school, and for the ministry and for Quebec society,” said Zucchi, who added the decision as upholding Quebec society’s values.

Zucchi said he “never lost faith, and never lost hope,” over the years as the Loyola case wended its way through the courts. “It was a very interesting exercise because it involved constant dialogue.”

He described the relations between the school and the Ministry of Education as “always friendly and cordial.”

Evangelical Fellowship of Canada (EFC) president Bruce Clemenger called the court’s decision “fair and balanced,” because it recognizes the rights of provinces to “establish learning outcomes for all students, at the same time respecting the religious freedom of Loyola or any private religious school to teach from their religious perspective.”

However, the minority decision written by Chief Justice Beverley McLachlin and Justice Michael Moldaver argued the majority decision did not go far enough in respecting religious freedom.

“Binding Loyola to a secular perspective at all times, other than during their discussion of the Catholic religion, offers scant protection to Loyola’s freedom of religion and would be unworkable in practice,” the minority justices said.

The minority ruled the majority decision would force Loyola’s teachers to remain “mum” when other ethical positions are raised contrary to those of Catholic faith.

“As an example, one can anticipate that students may wish to debate the appropriate expressions of intimacy between young people, and discuss the topic of premarital sex,” the justices wrote. “It is inconceivable that a Catholic teacher could sincerely express a neutral viewpoint on this subject — nor, in our view, should he or she be required to do so.

“The practical effect would be the teacher’s coerced silence,” they wrote.

The majority ruling did acknowledge teaching ethics and morals from a neutral perspective would be “a delicate exercise.”

“It would be surprising if, in classes discussing other belief systems, students did not ask for comparative explanations, questions Loyola’s teachers are clearly free to answer,” Justice Abella wrote. But she argued teaching the ethics and morals of other religions is “largely a factual exercise,” and does not require Loyola’s teachers to “shed their own beliefs.”

The majority ruling — which has the force of law — did not address the directly the contention that Loyola’s religious freedom as a corporate entity was violated but it did affirm the communal nature of freedom of religion.

“I recognize that individuals may sometimes require a legal entity to give effect to the constitutionally protected communal aspects of their religious beliefs and practice, such as the transmission of their faith,” Justice Abella wrote. “I do not believe it is necessary, however, to decide whether corporations enjoy religious freedom in their own right under s. 2(a) of the Charter or s. 3 of the Charter of Human Rights and Freedoms (the Quebec charter), in order to dispose of this appeal.”

The minority held, however, that Loyola may rely on the Charter’s religious freedom guarantee. “The communal character of religion means that protecting the religious freedom of individuals requires protecting the religious freedom of religious organizations, including religious educational bodies such as Loyola,” they wrote. “Canadian and international jurisprudence supports this conclusion.

“All seven judges have recognized in a formal way communal religious freedom rights, which was an area that had not been given a robust recognition previously,” said Catholic Civil Rights League (CCRL) President Phil Horgan. “In that regard, the case is a solid win for a robust understanding of communal religious freedom rights.”

The League intervened as part of the Faith and Freedom Alliance that included the Association of Quebec Catholic Parents and the Coptic Orthodox community in Montreal.

“Having said that, the majority has forced Loyola to re-engage with the ministry to work out the delivery of the ethics component of the program from a more objective viewpoint, “ Horgan said.

He preferred the language of the minority justices, “who would have granted the exemption to Loyola outright,” rather than forcing them to re engage with the ministry after the seven-year legal exercise.

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