The Supreme Court of Canada on Religious Freedom and Education: Loyola High School v. Québec (Attorney General)

—Benjamin L. Berger, Osgoode Hall Law School, York University

The classroom has been a contemporary crucible for working out the relationship between religion and the modern constitutional state.  Whether the issue has been the crucifix on classroom walls in Italy, the pledge of allegiance in U.S. schools, the religious (or was it ethnic?) identity of children at a Jewish school in England, or headscarves worn by teachers or students in schools around Europe, questions of constitutionalism and religious difference have persistently emerged out of debates about education.  As I explain here, this has long been true of the Canadian setting, in which education has served as a principal terrain for negotiating religious difference and the claims of state authority.

The Supreme Court of Canada’s decision in Loyola High School v. Québec (Attorney General), released last week, carries on this pattern of looking to the classroom to sort through constitutional questions regarding freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms, state neutrality, and the character of the modern “secular” state.  At the heart of this case is a part of the Québec government’s mandatory core curriculum for high schools, the Program on Ethics and Religious Freedom (“ERC”).

In 2008, the Minister of Education began to require that all public and private provincial high schools teach this program of study in world religion, the history of religion in Québec, and a range of religious and non-religious ethical systems.  The purpose of instituting the ERC was to “inculcate in all students openness to diversity and respect for others” by promoting “the ‘recognition of others’ and the ‘pursuit of the common good’.” (para. 11)  Importantly, the ERC was to be taught from an impartial and neutral perspective.  It thus sits in the arc of a particular Québec history: in the 1960s, during what is referred to as the “quiet revolution,” a theretofore highly Catholic society pushed back on the power and influence of the Church.  Education was the focal point of this radical social reorientation towards religion.  The government took control over public education, previously provided by religious communities.  By the end of the 20^th Century, denominational schools only operated as private institutions. The ERC was to be the coup-de-grâce, replacing all remaining programs of denominational education in high schools.

The ERC–and its requirement for strict neutrality in the teaching about religion–received its first challenge in the 2012 case of SL v Commission scolaire des Chênes, in which Catholic parents with children at a public school sought to have their children exempted from the ERC.  The parents’ complaint was that the neutral and objective teaching of religion and religious ethics would interfere with their ability to raise their children in the Catholic religion, as it would inculcate a kind of relativism and treat Catholicism as just one system of belief and ethics among many.  The Supreme Court of Canada rejected this claim, stating that the mere act of exposing children to varieties of religious cultures and ethical approaches did not interfere with the parent’s religious freedom, protected by s. 2(a) of the Charter of Rights and Freedoms.

Loyola presented a very different and much more difficult situation.

Loyola is a private Catholic high school run by the Jesuit Order since the 1840s.  It embraced the ERC’s objective of exposing students to various religious cultures and ethical systems but objected to the requirement that its teachers do so from a neutral or objective perspective.  To do so, Loyola claimed, was inconsistent with its status as a private Catholic high school.  Loyola asked the Minister to approve an alternative program that would seek to achieve the objectives of the ERC from a Catholic–not a “neutral”–perspective.  The Minister twice rejected Loyola’s request, concluding that this Catholic framing of the content meant that their program was not an adequate substitute for the ERC.  Loyola sought judicial review of the Minister’s decision, and the matter found its way to the Supreme Court of Canada.

Two judgments issued from the Court, with Justice Abella writing for a 4-judge majority and Chief Justice McLachlin and Justice Moldaver authoring a separate concurring decision for a minority of 3. On the specific issue in dispute, the Court unanimously found that the refusal to release Loyola in any way from the requirement of strict neutrality in the teaching of the ERC disproportionately interfered with the religious freedom of the members of the Loyola community.  The principal point of disagreement lay in how much of the ERC Loyola should be permitted to teach from a Catholic perspective.

Two different elements of religious education entailed by the ERC were salient to the case.  First, it would involve education about Catholicism and Catholic ethics.  Second, teachers would have to teach about other religious traditions and about other religious (and non-religious) systems of ethics.  All of the judges held that the requirement that Loyola teach the first element of the ERC–Catholic religion and ethics–from a neutral standpoint was inconsistent with the principles of religious freedom.  It would require a Catholic school to teach Catholicism from a non-Catholic perspective. “[R]equiring Loyola’s teachers to take a neutral posture even about Catholicism means that state is telling them how to teach the very religion that animates Loyola’s identity” and would amount to “requiring a Catholic institution to speak about Catholicism in terms defined by the state rather than by its own understanding of Catholicism.” (para. 63)  This problem of requiring a Catholic school to teach Catholicism “neutrally” was the fatal flaw in the Minister’s insistence on neutrality and led the majority to set aside, as unreasonable, the refusal to approve a modified version of the ERC for Loyola and to remit the matter to the Minister for reconsideration.

The two judgments diverged with respect to the second component: education about other religions and religious ethics.  Loyola was prepared to teach the facts about world religions from a neutral perspective, but insisted that, as a Catholic school, it ought to be exempt from the requirement to adopt an objective stance when teaching about the ethics of other religions.  Justice Abella rejected this argument, holding that it is constitutionally sound to require the Catholic school to teach the ethics of other religions in as neutral a manner as possible.  She conceded that teaching other religious ethics in a Catholic school from an objective perspective would be a delicate undertaking and she was clear about what this stance of neutrality would not prohibit: it would not prohibit teachers from exploring and explaining, in a comparative way, the differences between the Catholic ethical perspective and those of other religions.  Her concern appears to have been that teaching other religion’s ethical principles “through the lens of Catholic ethics and morality” (para. 75) would turn this component of the ERC into another class on Catholicism. The risk 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” (para. 75).

Yet when one probes this concern, the majority’s position seems unstable.  Justice Abella described the goal of an “as-objective-as-possible” stance as being to teach other ethical positions “in their own right” (76).  She wanted teachers in a Catholic school to present other religious ethics as “differently legitimate.”  There are at least two ways in which one could interpret this mandate, both of which have support in the majority’s reasons, but both of which leave us to do some head scratching.  First, the mandate may be that different religions must be treated as “legitimate” in the sense of being treated with respect and a desire to understand the internal meaning of these traditions.  However, it seems unclear why a teaching from a Catholic perspective is incommensurate with this ambition for respect; indeed, the concession that, in the course of teaching about other ethical systems, teachers may explain “the Catholic perspective and its differences from other faiths” (para. 78) suggests otherwise.  Alternatively, then, one might read the mandate as being that teachers present other ethical systems as possibly true and, in this sense, “differently legitimate.”  But if this is the mandate, how is it to be squared with the majority’s strong affirmation that Loyola may teach about Catholicism and Catholic ethics from a partisan, Catholic perspective?  The majority appears to be leaning on an acoustic separation between the moments in the course in which Catholic ethics are being explained and explored as part of Loyola’s constitutionally protected right to transmit the Catholic faith and those moments when students’ attention is turned to other–other–systems of religious ethics.

This problem led the minority to conclude that “it would be insufficient to merely grant an exemption for Loyola to teach Catholicism from a Catholic perspective, while requiring an unmodified curriculum and a neutral posture in all other aspects of the program” (para. 154).  The minority would go further, concluding that, so long as teachers “facilitate respectful and open-minded debate, where all positions are presented” (para. 155), Loyola should be permitted to teach and encourage the evaluation of other systems of religious ethics from a Catholic perspective.  The minority rejected the idea that Loyola must present all religious perspectives as “equally legitimate and equally credible” (para. 160), regarding it as inconsistent with the “inescapable reality that Loyola is a Catholic high school whose students and parents have voluntarily selected an education infused with Catholic beliefs and values.” (para. 158)  The minority judgment appears to be a truer reflection of the nature of ethical education, in which positions taken with respect to one ethical system inescapably inflect one’s posture toward others.

The differences between the majority and minority may, however, fade on close inspection.  Both sets of reasons insist that other religions must be discussed with respect and toleration, allow teachers to contrast the Catholic viewpoint with other religious systems, and allow for Catholicism to be taught from a Catholic viewpoint.  Ultimately, then, the Loyola decision might be most telling in its reflection of the difficulties of managing the process of teaching and education from the elevation of constitutional adjudication.  The unpredictability and dynamism of the classroom is, in some ways, antithetical to the aesthetic coherence sought through jurisprudence.  Perhaps this–combined with the deep interest that both state and community hold in the cultivation of the child[1]–is why education has persisted as such a fertile ground for the emergence of issues of law and religion.

Beyond its central ruling, Loyola offers much of interest for scholars of law and religion in Canada and in comparative perspective.  In framing her analysis of the Minister’s decision, Justice Abella reflects on the character and demands of Canadian secularism.  She affirms the state’s legitimate interest in advancing certain shared values such as equality and the protection of human rights but emphasizes that, although “[a] secular state respects religious differences, it does not seek to extinguish them” and that secularism prohibits interfering with religious practices and beliefs unless they harm or conflict with “overriding public interests.” (para. 43) Reading these reflections on secularism, particularly in the context of a case coming out of Québec, one cannot help but hear an engagement with the vision of secularism advanced by the Parti Québecois with its proposed Charter of Québec Values in 2014, in which the “secular nature of the state” would have precluded public officials from wearing any conspicuous religious symbols–a version of secularism more akin to the popular understanding of French laïcité than the model offered by Justice Abella.

Loyola also represents the Supreme Court of Canada’s most sustained discussion of the collective dimensions of religious freedom.  The case raised the question of whether, as a corporation, Loyola enjoys constitutional protection for religious freedom. The majority declined to decide the issue. The minority found that corporations did hold such rights if they are constituted and operate for religious purposes.  One cannot help but read both judgments as seeking to navigate the risks reflected in the Hobby Lobby decision of the US Supreme Court.

Despite this difference in approach, both judgments held that the transmission of the Catholic faith is an important component of the collective aspect of religious freedom.  The depth of this commitment to the group-based dimensions of religion is somewhat uncertain: the Court seems to value the social aspects of religion based on how they redound to the individual’s religious rights and Loyola is a case in which the individual and collective interests neatly coincide.  Moreover, the Court speaks of the communal traditions as “manifestations” of individual beliefs, a decidedly thin way of conceiving of the collective dimensions of lived religion.  Nevertheless, the Court’s attention to these collective dimensions of religious freedom represents an intriguing opening in the Canadian jurisprudence that casts provocative light on current debates in Canada about whether law societies should or must accredit the law program of an Evangelical Christian University with a religiously-inspired code of conduct that discriminates against sexual minorities.

Suggested Citation: Benjamin L. Berger, The Supreme Court of Canada on Religious Freedom and Education: Loyola High School v. Québec (Attorney General), Int’l J. Const. L. Blog, Mar. 23, 2015, at: http://www.iconnectblog.com/2015/03/the-supreme-court-of-canada-on-religious-freedom-and-education-loyola-high-school-v-quebec-attorney-general

[1] I discuss this aspect of education here.