Loyola Supreme Court Decision: Parental rights and religious freedom upheld
After 12 months of deliberation, the Supreme Court of Canada released its decision this morning in Loyola High School v. Quebec (Attorney General), upholding religious freedom first for the Loyola Jesuit school but also more broadly for all who seek to apply their faith to the education of their children. This is a case that every independent Christian school across the country has been watching closely.
At stake in this case was the religious freedom of parents and institutions to educate children according to a worldview that might be different than that of the State education bureaucracy. Thankfully, the Court was unanimous in finding that religious communities can teach their own faith to their children from their own perspective.
As you may remember, ARPA Canada led a coalition of 313 independent Christian schools and 11 post-secondary institutions to 
intervene in the case. The coalition was called the Association of Christian Educators and Schools (ACES) and we argued that confessional schools must be accommodated as an alternative to State-run schools.
André Schutten, Legal Counsel for ARPA Canada, was in the counsel lock-down this morning and had opportunity to review the decision before it was made public. He noted the following in a press release to the media: “Our hope was that the Supreme Court would affirm hundreds of years of legal precedent that parents are the first decision-makers for their children, and that religious freedom includes the right to train children within a particular worldview. This morning, the Supreme Court has delivered.” He also said, “With this decision, the Court stood up for liberty and for parental rights. While the Court could have been stronger in some places, this is still a welcome decision.”
In light of this case, ARPA Canada will be encouraging our elected leaders in Ontario, Manitoba and Alberta to rethink their one-size-fits-all approach to religion, ethics and secularism. Over the past two years, these provinces have imposed a particular religious – that is, secular – worldview on all schools through Bill 13 (Ontario, 2013), Bill 18 (Manitoba, 2014) and Bill 10 (Alberta, 2015), while ignoring or suppressing the freedom of religious institutions and families.
Parents ought to have the first and final say on the religious and moral instruction of their children. While the State may assist parents in educating children, they may not override parental decisions relating to ethical and religious instruction. There has been a trend towards Statism in education in Canada. This decision gives hope to parents in stopping that slide.
However, there are problems with the decision as well. For example, the majority found “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.” (para. 6). If this means that Christian schools should teach the factual elements of other religions (e.g. the 5 pillars of Islam, the 8-fold path of Buddhism, etc.), then those facts can be taught relatively objectively (and all the Christian schools I know do that anyway). However, it remains unclear whether and how much those ethics and beliefs of other religions can then be critically evaluated through a Christian worldview. Further, a deeper issue is the Court’s assumption that the State has the authority to tell schools and parents what must be taught.
Despite the shortcomings of the judgement, we should still see this as a win. The court states, “A secular state does not – and cannot – interfere with the beliefs and practices of a religious group unless they conflict with or harm overriding public interests… A secular state respects religious differences, it does not seek to extinguish them.” (para. 43) For now, this is a fine statement. However, “respecting religious differences” is susceptible to changing “public interests”.
The crux of the decision is found in paragraph 62, where the Court ruled, “To tell a Catholic school how to explain its faith undermines the liberty of the members of its community who have chosen to give effect to the collective dimension of their religious beliefs by participating in a denominational school.” This is a robust defence of independent Christian schools. The court goes further in paragraphs 63 to 67, outlining how the actions of the Quebec Minister of Education “interferes with the rights of parents to transmit the Catholic faith to their children… because it prevents a Catholic discussion of Catholicism. 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.” (para. 64).
Finally, when reading the decision, paragraph 70 seems to come across very strongly in our favour: “Catholic doctrine and Catholic ethics are simply too intertwined to make it possible to teach one from a religious perspective and the other neutrally.” It seemed the Court understood the nature of religious education: the worldview is holistic and informs all aspects of education. But, curiously, the Court steps way back from that in the very next paragraph by stating that “requiring Loyola to teach about the ethics of other religions in a neutral, historical and phenomenological way would not interfere disproportionately with the relevant Charter protections implicated by the decision.”
The Court appears to believe that simply teaching the objective facts about various religions is required, which (as discussed above) most Christian schools do anyway. When it comes to ethics and religion and morality however, it seems open still to Christian schools to then evaluate those religious worldviews from our own perspective.
The lawyer who helped us with the file, Ian Moes, pointed out the following instances where we think our arguments were adopted by the court. At para. 43 of the judgment, the Court states that the state can only interfere with the beliefs or practices of a religious group if they conflict with or harm overriding public interests. We had argued,
A government regulation, or the exercise of ministerial discretion, that directs a confessional school to refrain from teaching from a particular confessional perspective is coercive. It fundamentally misunderstands religion and that these confessional schools were set up to teach from a religious perspective, not a “neutral” perspective. Such a direction undermines the very core of what it means to be a confessional school. It engages freedom of religion and can only be permitted when proven “necessary to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others.”
And at para. 64, the court affirmed parental rights and said the minister’s decision interferes with the rights of parents to transmit the Catholic faith to their children, whether through the home or through participation in communal institutions. We had argued:
The State violates the Charter rights of the parents if it requires these schools (as proxies of the parents and manifestations of their collective will) to teach in a manner that undermines the religious beliefs of the parents. This is particularly the case as these schools have been specifically established to teach from a confessional perspective consistent with the parents’ religious beliefs and obligations.
Finally, at para. 67, the court says measures that undermine the character of lawful religious institutions are unreasonable. We spoke repeatedly about the “core” of what it means to be a confessional school.
Again, this ruling can be celebrated as a win. The court sets out a clear defense of communal religious rights, makes good references to parental rights and in the end ruled for religious liberty. While we would have loved a much stronger and broader decision, considering the legal context and cultural climate we find ourselves, this case is a step in the right direction.
On behalf of the entire ARPA team, we give thanks first to our providential Father who has blessed the work we have all done together and surrounded us with such a supportive community. We are so thankful for the ongoing encouragement of the Christian community for the work we are privileged to do. And we say a special thank you to Ian Moes, lawyer in British Columbia, for his exceptional help on this particular case.
To read the Loyola decision of the Supreme Court of Canada, click here. To read the ACES factum (written legal arguments), click here. For a background on the Loyola case, click here.
